Proposition 54K2282

Projet de loi modifiant le Code civil en ce qui concerne les successions et les libéralités et modifiant diverses dispositions en cette matière.

General information ¶

Authors

CD&V Sonja Becq
MR Philippe Goffin
N-VA Sarah Smeyers
Open Vld Carina Van Cauter

Submission date

Jan. 25, 2017

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

civil law law of succession

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo Open Vld N-VA LDD MR PP

Voted to reject

LE PS | SP DéFI

Abstained from voting

∉ PVDA | PTB VB

Party dissidents ¶

• Olivier Maingain (MR) voted to reject.
• Stéphanie Thoron (MR) abstained from voting.

Contact form ¶

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Discussion ¶

July 19, 2017 | Plenary session (Chamber of representatives)

Full source

The rapporteurs are Mr Calomne, Mr Foret and Mr Brotcorne. They all refer to the written report.

Mr. Speaker, colleagues, it is first and foremost appropriate to thank Minister Geens for the space he has given us to sit together with a number of colleagues and exchange ideas on this topic. In doing so, the ideological contradictions were occasionally put aside, which is sometimes necessary. He has also given us the space to continue working on those texts and has provided support from a number of professors who, with regard to the themes, have not only provided their expert support, but sometimes also persistently held up to their own ideas. This has undoubtedly enriched the debate and the many Saturdays that we have broken together. I, by the way, greet Ms. Casman in the tribune.

It would be inappropriate to forget the actors on the ground – and there were quite a few – such as the notary. I think in particular of Mrs. Charlotte Aughuet, who has put her expert contribution on the scale. Also, representatives of the bar have enriched their professional knowledge on the subject to us. Thus we were able to do what we thought we were: we no longer let Napoleon determine how our inheritance is connected, how the legal devolution must be obligatory. On the other hand, on the basis of a picture of society, we seek to modernize our heritage law somewhat and to make it more closely aligned with what lives in society and with what the citizen primarily expects from the legislator and what he considers.

We have indeed started from that picture of society and have, not as the only ones, had to establish on the basis of figures that our society has evolved complex. The way people live together has changed greatly over the years. Consider the evolution in the number of marriages.

In 1990 there were 64 554 marriages. In 2014, there were only 39,878. This has taught us that long holidays do not necessarily give rise to marriage more often, but that people are more likely to choose to simply live together and, if necessary, choose to conclude a legal social agreement.

Now you will wonder whether this has to do with what the legislator has to do. In the legal devolution we have changed little to nothing. Of course, this has to do with inheritance, when people do not live together in a marital union or when children are not always born from the same relationship. In their inheritance, parents or partners in those cases sometimes wish to take into account children with whom they have a socio-affective bond or with a partner with whom they have lived together for more than ten or twenty years.

Moreover, today we note that unlike before, when marriages or relationships lasted longer, partners quite often change. One in two marriages ends in a divorce. Then there will be a “refounding partner”. Whether or not children are born from a new relationship. This means that partners want to settle their inheritance differently than they did about thirty years ago.

It is also good to note that we all live longer. Indeed, our life expectancy has increased. At the time of Napoleon, it was on average forty years. Today we average eighty years. What does this have to do with inheritance? Well, the moment we inherit is logically situated at a later stage of our lives. It often happens that when people are called to an inheritance, they no longer need it so much, but that they want to pass that inheritance, sometimes fully, sometimes partially, to the next generation. Today, however, the legislature imposes strict restrictions on this, so that there was also a farmhouse that we would like to address.

One last noteworthy finding is that inheritance is still and repeatedly a source of conflict, of unexpected problems, and that people – it seems paradoxical with regard to the broader freedom people want – when it comes to it or at the moment they themselves are called to inherit, expect that there will be more legal certainty. We must therefore reconcile, on the one hand, more freedom and, on the other hand, more legal certainty: stricter and freer. It was not easy, but I think we have succeeded in doing so with the present text.

The present text provides for a reform of the inheritance law which may not be revolutionary, but which in any case involves a necessary evolution in the light of the needs of our society.

I have already mentioned the three major strength lines. There will be more freedom. There is also the possibility of acting conflict-solving, preferably in advance, which means there is a need for a possibility of making an inheritance agreement, to date still prohibited. I have been taught that this also comes from the time of Napoleon, when it was assumed that, if one knew that one is called to an inheritance, one would dare to help accelerate the process of death. That is why there is still a ban on inheritance contracts today. However, we assume that agreements can work conflict-solving and that they should be possible in a socially adapted inheritance law.

There will also be more legal certainty. The legislation should be simplified where possible. It is also our consideration not to make the legislation unnecessarily complicated. That is also a red thread – or blue thread – in the proposal.

More freedom, my friends. We know today three categories of reserve heirs: the children; the longest-lived spouse, wife or partner; and the parents when there are no children. Since one can only divide an inheritance once, this means that if one wants to incorporate more freedom, one limits the reserve of the children. They still retain a reserved part, but that part will in all cases be limited to half. This automatically gives more freedom to take into account every family situation.

I repeat that this law does not bind anyone. It only gives more freedom.

We have not touched the legal devolution. If parents decide not to make donation testaments, the inheritance will still pass in equal proportion to the children born within that marriage or family. We do not change anything. We only allow more freedom to come up with an adapted solution in every family situation.

The reserve of the ascendants is replaced by a maintenance claim on account of an inheritance, but only in case of need. This maintenance claim is also limited in size, namely one-fourth of the inheritance per line, along the mother and father side.

This also provides more opportunities for those who actually live together. If people live together for ten, twenty, or thirty years and one of both partners dies, and despite the fact that they have expressed the will to pass their inheritance to their partner, then it is no longer of this time that there is still a reserve in favor of the parents, so that they can still claim a part of the inheritance. I think there should be a possibility to create more freedom here too.

The same applies to people who are married under the system of separation of property and who wish to pass their inheritance to a distant cousin or niece, or a good cause. They, or their partner, also face a number of limitations today. These are written out by means of the removal of the reserve.

A third aspect is that a reserve that exists today in nature becomes a reserve in value. This gives more freedom to assign, for example, the trade affair to one of the children. One example given during the discussion by one of our experts was that of a bed and breakfast, which is allocated to the children who have worked out the case during the lives of the parents together with them. A reserve in nature would necessarily mean that bed and breakfast, or a bakery, is sold, with the consequence that if the reserve inheritance of the other children has to be effectively paid out, this would be a cash compensation. There is thus more freedom of disposal, also by defining the reserve in nature in a reserve in value.

I would like to reaffirm that this does not mean that the children will be deprived of their reserved inheritance, but that there will be more freedom of disposal for those who wish to settle their inheritance.

The global inheritance agreement between parents and children, which will be possible in the future, implies that one can seek a subjective solution in a binding manner prior to death and write out a solution tailored to the family. For example, a partial generational leap can be arranged, or stepchildren can be involved in the agreement; in case of specific problems in a family, agreements can be arranged that avoid conflicts afterwards.

This is exactly what many parents want. Their biggest concern is to avoid any quarrels between the children, about money or even when they are no longer there. This is something that is often avoided at all costs. This will also be possible in the future, through a global inheritance agreement, but that does not mean that a punctual agreement would be excluded. This will also be possible in the future, both on the contribution and on the reduction.

At the same time, it is also important that one will be able to conclude an agreement under a payable title on a certain part of his inheritance. I would ⁇ mention the work of Jan Bael here. If I think correctly, that was the subject of his doctoral thesis. So this problem has been around for a very long time, but there is definitely a solution for a lot of couples living together who buy an immovable property indivisibly, want to care for each other or think that they have found the solution in the condition of adjustment. If the clause provides that a termination of the agreement during the lifetime is possible, for example through the sparking of the relationship, then one would face a void agreement. For example, in addition to the loss to be dealt with, one would also be confronted with distant relatives who come to claim an inheritance, while one assumed that one had cared for each other. In the future, this risk will no longer be assumed and such an agreement can be concluded safely and surely.

Colleagues, as regards the balance between the longest-lived and the children, we have been carefully removed from the marriage property law. This will be a task for later. I hope that in the same way we will be able to find a consensus, also with regard to the necessary changes to the marital property law, but we have addressed several points that are a source of many conflicts. It happens quite often that children from a previous marriage come into conflict with the longest-lived from a subsequent relationship. Sometimes the reason for this is understandable.

For example, children do not expect that the second partner can claim reduction on goods already donated to them before the marriage, the subsequent or second marriage, and that, if necessary, the use of fruit will again shift to the second partner. This is something that is not expected and that is also felt as unfair. That is also the reason why this proposal aims to amend this rule so that the longest-lived person can no longer request a reduction on the gifts made before his or her marriage.

In order to maintain the balance between the children and the longest-lived goods, we have also ensured that the inheritance of the children remains as untouched as possible with the use of the fruit of the longest-lived spouse. It was the search for this, occasionally, yet difficult balance. However, I think this is also a special contribution to avoiding conflicts.

Finally, there is the conversion of the fruit use, which will be possible on the first request when the longest-lived spouse comes together with non-common children. This also avoids incidents and does not make procedures unnecessarily long. Since the outcome of these procedures is actually almost predictable, it seems effectively appropriate to avoid such conflicts by adjusting the law, which we also propose here.

Colleagues, it’s about providing more legal certainty and not making unnecessarily complicated what can be simple. Therefore, we write a number of suspicions into the law.

(The lights are dimmed in the hemisphere)

Please do not apologize for interrupting you, Mrs. Van Cauter, but I would like to inform you that we will have less light for ten minutes, after which we will be able to have full light throughout the evening.

I already thought this was a sign that I had to finish, Mr. President

No, absolutely not.

I try to proceed with competent urgency.

I was talking about the suspicions. As a presumption, it remains only that when descendants have received a gift, it is suspected that this is about an advance on the inheritance and that they are suspected to deposit it. That does not mean that parents or legators would be excluded from making gifts outside of inheritance. They may, of course, continue to do so, but then it will have to be stated very clearly, in the absence of which, according to the law, a presumption of contribution will apply. Other heirs are suspected of being exempt from contribution. This is logical, because if one gives something specifically to third parties, one has no equality between certain heirs in mind and a presumption of contribution is not in place there. Therefore, this does not mean a legal presumption of contribution in respect of other heirs, but an exemption from it. Note, this should not be confused with a reduction, which in those cases will still apply.

A second aspect that was addressed and that I would like to mention is the way in which gifts to be introduced are valued. Today, there are different rules for this and it is important to know whether it is mobile or immovable property. Real estate must be put into mass in nature, which means that the reference value is determined on the day of the distribution. That is the value that will be taken into account to move on to the distribution.

As regards the movable goods, their value on the day of the donation shall be taken into account. In practice, this very often leads to unexpected problems: when at a certain time parents have allocated the same value to both children, to one moving and to the other immovable, at the time of their death and the distribution that children may be faced with an imposition owed by the one who received the immovable, because there indeed takes into account an added value.

Therefore, in the future, movable and immovable property will be valued in the same way as the contribution, namely the value on the day of the donation, for that is the moment when the property leaves the future inheritance, and indexed until the moment of death, insofar as one can dispose of the full ownership and of that particular property. That is logical: an indexation to make the donation, in terms of valuation at the time of the contribution, value-resistant.

In addition, some issues from practice have been solved. Let us think of the accounting of gifts on the global and not on the individual reserve. And so there are many other punctual elements to be mentioned from the bill, but that would lead us back to the discussion in the committee and that is not the intention today.

Finally, the proposal provides for a one-year transition period. Why is it a year? It seems long. Well, it is logical, it is indeed a greater reform and that means that the practice must be able to prepare, adapt, prepare for it. Let us think of the register of succession agreements. It will be possible to provide for such agreements to be registered. However, it will also require some study work to apply something in practice.

It is also a transitional period of one year due to donations and asset plans that have taken place in the past to allow everyone to choose, as at the time with the reform of the marital asset law, whether this donation should be classified under the old or under the new rules of valuation.

It is not the purpose of this law to interfere with the expectations of citizens who have already planned or fit their assets as legislators. We also want to give them the opportunity to put things in order. Hence that transitional period, but also to allow us to further consult and reach a consensus on marital property law so that the two amendments can come into effect together.

Finally, there is also the fiscal aspect. When citizens ask me a question about inheritance law and inheritance reform, they often have the taxation in mind. Well, see it as an outstretched hand, this question to the regions to not penalize the freedom offered today taxally. We, on the other hand, ask the Regions to make the necessary changes to the legislation also with regard to the inheritance tax.

I conclude with a word of gratitude to my three other colleagues, Philippe Goffin, Sonja Becq and Sarah Smeyers, with whom I have been able to work very well. I thank them for their constructive attitude. I have already said it: abandoning ideological contradictions and seeking solutions that serve the social interest is what we have done.

It is important for us that our DNA can be found in what lies ahead today. More freedom, more freedom of disposition, more security, which means more legal certainty. This is obviously reflected in this proposal.

Progress also, in the sense that we have not been concerned with ourselves, but that we as legislators have sought to bring the law into conformity with what is perceived as social necessity.

Mr. Minister, I started my speech by thanking you, but you were not here at the time. You entered a little later. I would like to reiterate my gratitude for the space you have given us to work together and thus come to a broad proposal. I would like to use your presence to thank you once again for this.

My position has not changed since the long debate.

I will say from the outset that the negative effects on children’s rights are too heavy and do not compensate for the few positive aspects of the text under consideration, such as the modernisation of certain aspects, simplification and the possibility of agreeing to agreements on future successions.

In this case, the problem lies in the fact that the majority did not want to hear the arguments arising, for the most part, from French-speaking considerations emanating from the opposition or experts who were heard in a committee. I really had the feeling that there was a debate in the North and a debate in the South with extremely different visions and philosophies.

While, in many respects, this text may seem more technical than political, it has clearly appeared that there was a fracture resulting, as I said, from several conflicting values: on the one hand, the protection of the surviving spouse and the freedom of the future deceased to dispose of his property, and, on the other hand, the right of children resulting from the bond of filiation and the principle of equality between them, de facto excluding any form of preference given, for example, to the elderly or boys, as it was sometimes customary to do in other times.

In this case, one can say that each of these principles is valid, but what is wrong is when one takes over the other; this is where the bât hurts because in the bill, in this regard and without concession, this is done at the expense of the rights of succession of children.

Dear colleagues, you will not be surprised, therefore, that I consider that this text breaks the balance, in the first place, by fixing a reserve equal to half the estate of the succession, regardless of the number of heirs. The proposal does not take into account the different family structures, depending on the number of children that make up the family. In fact, the text generates a kind of premium for the single child that would be advantageous in competition with double compared to a fraternity consisting of two children and even triple compared to a fraternity of three children. In the present case, as the State Council had considered, this rule remains problematic in the light of the principle of equality. In addition, to give more autonomy to the tester, children’s reserves are also significantly reduced. Thus, for a brotherhood of three children facing a spouse in second weddings, the bill reduces their inheritance share by one-third.

We believe that the children’s reserve should remain as it is today, in the same proportions. For this reason, we had submitted an amendment to return to the current system that had the merit of taking into account family structures without generating too unequal distribution. In addition to being unbalanced, the text promotes unequal situations between children as it will now be possible to benefit one child up to five times more than another. Do you find it normal that, without any adequate motivation, a child can receive three-quarters of the inheritance and his brother or sister only a quarter?

I wonder why, but the text allows it. It goes in the opposite direction of greater equality within the family. This is even less normal when the current system already allows to give three times more to one heir than to another.

To base their reform, the authors of the proposal – you have repeatedly recalled it – rely on studies conducted by the Roi Baudouin Foundation that demonstrate that the Belgians would like more flexibility to settle their wealth. This thirst for freedom, however, does not seem to me as obvious as it seems, since it shows from this same study that only 24% of citizens actually prepare their succession. If we analyze these texts, this means that 76% of Belgians, three-quarters of Belgians, do not make a will and therefore do not derogate from the succession that is provided by the law. This three-quarters figure clearly nuances the need for freedom that the Belgians would have.

Alternatives have, however, been proposed in such a way as to consider the rights present in order not to disproportionately hinder the child’s reservation rights, while allowing the future deceased to have more autonomy over his estate, but nothing has been retained. I recall that the League of Families had spoken of a reserve side in favor of relationship children. So, advancing towards such a system would have met the goal that is to take into account the new family patterns such as grandchildren, etc. However, it does not reduce the reserve share of children.

There were also amendments that were submitted by my colleagues from the CDH and aimed at reducing the possibility of excessively favoring one of its children over the others. Finally, the audited experts advocated reservations in proportions ⁇ smaller than the current ones, but which had the merit of varying depending on the number of children who were called to the succession.

Unfortunately, these alternatives have not been adopted. In the face of individual freedom, apparently absolute priority of the authors of the bill, the rights of children and equality between them are thus greatly endangered.

Secondly, the new rules modifying the mechanism of reporting and reduction, which must now be applied in all circumstances, also leave no room for child heirs, since it is no longer possible for the child to recover the property given in violation of his rights, and more ⁇ in violation of his reservation. To justify this rule, it is highlighted the right of ownership of the gratified person and the legal uncertainty that would be generated by a potential return of the property in kind. On the other hand, it is also the right of ownership of the disposer that is affected by it.

In this case, the State Council is highly critical in considering that the bill restricts the right of ownership as well as the autonomy of the disposer, this time by providing for an absolute prohibition of the disposer from being able to report or a reduction in nature. This provision of principle is not justified and is not proportionate, since no exception mechanism has been considered by the majority.

Nevertheless, the surviving spouse benefits from mechanisms unchanged by this proposal, which allow him to maintain certain bonds in view of the importance of ⁇ ining certain assets in the family. For example, we think of preferential allocation, concrete reserve and the veto right to the conversion of the usufruit on preferential goods.

Again, in the balance, it hurts. The balance is broken. While I am in favor of the unification of the ratio and the reduction, which simplifies the task of practitioners, the fact of reporting or reducing only in value is yet another element that will diminish the right of children.

The authors believed to provide mechanisms that would compensate for the reduction of the reserve portion for children, but this is really eye powder. Indeed, these provisions have no positive effects, either simply because their scope of application is extremely limited – as the State Council has observed in the second and third points of its opinion – or ironically because they have adverse effects for the child. By the way, experts have not chewed their words by calling certain mechanisms "false". The attempt to balance the interests of the children and the surviving spouse is also futile.

Finally, we are in favor of the introduction of rules on future succession agreements. However, it should be clarified that, since the influence games are present within the families, strong guarantees must be established, so that all parties can consent, with all knowledge of the facts, to the pact – knowing in particular what they are renouncing. To this end, amendments by the majority allowed to raise some concerns, but unfortunately not all. We regret the little attention paid to the protection of the weakest parties in this type of contract. The optional nature of the individual meeting between the notary and the parties seems to us to be less protective to those who must undertake the procedure.

If we hear, and even share, the intention of the authors of the proposal to integrate the evolution of new family models – I think of the example already mentioned of so-called relational children – it can obviously not result from a situation that would be unbalanced for them. We consider that in this case, the different balances have not been found and that this text amplifies the freedom and autonomy of the tester, to such a point that they are realized by undermining the solidarity between generations. It results in a situation that is very unequal between children and the surviving spouse. The latter, in the event of a second marriage, could collect up to 85% of the family estate.

By the way, I regret that the reform has been squeezed because the reform of the marital regimes that is being prepared should have been analyzed jointly with it because these areas are closely linked.

In any case, I doubt that this text will have the effect of reducing the many conflicts in matters of inheritance. On the contrary, knowing that these conflicts originate mainly from a feeling inequality between children or the relationship between children from a previous union and the new partner of the future deceased, the text will only intensify disputes within families.

Mr. Speaker, Mr. Minister, dear colleagues, the succession law is no longer able to respond to what people expect from it and to the evolution of mentalities and family relations. It is therefore no longer able to preserve peace in families, traditional or non-traditional. These phrases are not from me but come from the statement drawn up by the King Baudouin Foundation.

The issue of succession rights concerns us all. Everybody inherits one day and everybody passes their inheritance. In Latin, successsio means "action to take place" or "substitute itself". We could make a parallel with politics, but this is another debate.

The law of succession is a law that organizes the patrimonial effects of the death of each citizen on the lives of others. It is also a right that gives life to the transmission of heritage.

If one believes Molière or, more seriously, some practitioners, the right of successions, it is also, unfortunately, the right of conflicts. This is probably due to the fact that in terms of family heritage, having and being are difficult to separate.

History often makes it possible to better understand the reasons why this or that provision is adopted today. I will not crush you with historical reminders, but I will evoke a few of them on the major trends of our law.

First of all, Roman law took over the main element, that of the will. There was a real predominance of testamentary succession over legal succession. We know that our current law is heavily influenced by Roman law.

Then, the Anglo-Saxon law is different. It is the firstborn ab intestat on all lands and the freedom of testament for the rest that prevail.

Finally, for French customary law, it is the predominance of legal devolution over testamentary devolution, with the clear preservation of property in the family, the privilege of firstbornness and masculinity. The French Revolution then passed through it with all its principles and will sharply change the concepts. This is a real and strong rupture with the old law. Inheritance law is seen as a splitting of family fortunes, a distribution of wealth. This allowed to break the continuation of the privileges characteristic of the Old Regime. It is also the time for the abolition of successor privileges. This is the preponderance of law, of equality over freedom.

A wave of codifications occurred in 1800. In our country, it is thought to be just the Code Napoleon, but it is not quite accurate. We need to look beyond our borders. A real codification is observed in many European countries and it is noted that the rules related to succession devolution remain very conservative and very close to what law had built over the centuries. This is not a real rupture.

At the end of the 20th century, we see again a desire for convergence at the level of European law, but we find again that it remains one of the niches of law, where the rules of succession devolution have difficulty being harmonised throughout Europe and prefer to preserve the particularisms of states.

Our country has also evolved, inevitably. In 1804, the principles of the French Civil Code were applied. Subsequently, our law evolved into two major periods: that of the filiation that occurred in 1887 and that of the revolution linked to the evolution of the rights relating to the situation of the surviving spouse. It is the famous 1981 law that will give more rights and protections to the surviving spouse. This law was an inscription in the evolution of society, in the evolution of the successor vocation of the surviving spouse, given the growing gap between the place taken by the surviving spouse within the family, with a particular emblematic element: the right to the guarantee of housing for the surviving spouse. Two elements have strongly guided this reform, which today still impacts us: to guarantee the surviving spouse the same lifestyle as far as possible and to take into account the evolution of the sociological fact that makes so that the so-called lineage family is in recession for the benefit of the nuclear family.

Since then, the doctrine has repeatedly fueled the debate of successions by insisting on difficult points and suggesting new developments related to that of society in general. Several points highlighted by the doctrine over the years have been taken back in this proposition: the often difficult coexistence between the usufruct and the nude-ownership, which poses problems in the distribution of burdens and, more importantly in the presence of so-called recomposed families, the lack of flexibility. There is no choice possible between a wide usufruit and a full limited property. However, here too, the circumstances are very different. The law we are discussing today allows for more flexibility.

I will return to the study of the King Baudouin Foundation. Both those of 1997 and 2016 recalled a constant concern of the population to ensure legal protection to the surviving spouse without neglecting the transmission to children. The succession allows the continuation of the person of the deceased, a continuation between life and death. It is turned towards the future. The heirs of the first order are the children or grandchildren. This characteristic is also reinforced in this proposal.

On the one hand, the removal of the reserve of the ascendants is a real novelty. It is compensated by the granting of an alimony claim, which takes into account a new reality: the increase in the transfer of money to ascendants, in the context of the extension of life expectancy and the explosion of medical and home aid costs.

On the other hand, I will talk about the possibility of generational leap through future succession agreements, for example. Inheritance law now has a vocation to allow the transmission of property to the next generation, but also a vocation to ensure an equivalent and guaranteed material situation for the surviving spouse, married or, thanks to this law, legal cohabitant. The next logical step is to grant inheritance rights to the surviving partner. As I said, it was also logical to take into account that, in a de facto cohabitation, there is a choice of total freedom, and therefore, no desire for enhanced protection emanating from this bill.

As you can see, the legislative changes have, so far, mainly concerned the determination of the persons called to succeed, so as to translate on the successional plane the transformations experienced by our society, with the family on the sociological level, but also the development of recomposed families. These are made less pretense by the family allocation of property.

As far as it concerns how to distribute the succession, to share it and to liquidate it, this proposal goes beyond the mere determination of the persons called to succeed. Let us talk about the transformation of the sharing in nature of inheritance property into sharing in values. This element was ⁇ important for us. Division in kind is only feasible in the case of large and diversified successions, which is rarely the case. The consequence is that in practice, the rules are most often the subject of derogations to allow, precisely, this sharing in values. The text here clarifies things once and for all.

The reserve in values rather than in nature resulted, at times, in hindering the transfer of certain patrimonial assets to satisfactory conditions of legal certainty, in particular for third acquirers.

The choices made by the proposal are courageous and clear. They may not be liked by everyone. It is the fruit of choice. We tried to find the widest possible consensus. We have not reached this and we have noted it during the work of the committee, even though several points of this proposal have been the subject of feelings, opinions, or even positive choices, at least in the framework of the vote article by article and not on the whole provision.

Let me say a word about the reserve that we have already talked about. Finally, the reserve is not to be found in the rights of the deceased but rather in his duties. The choice was made to maintain the value - and even reduced - which shows the will of the legislator not to give the testator a power, a total capacity, a all-power. On the contrary, we wanted to make a mix between this freedom mentioned, demanded, demanded over the years and this necessity also to guarantee a filiation within the framework of this devolution of heritage.

The way of organizing its succession has also evolved. The testament is still there but the real novelty is the generalization and clarification of the rules relating to the future succession pact which was already possible, but which was ⁇ difficult to implement and which was not very clear. Today’s text allows for more clarity within families. This is not an easy topic but, by putting on the table of one another, families, the possibility of being able to talk about it, we may be able to raise some potential conflicts within them.

In conclusion, I will tell you that I found a short text, be assured, by Fabienne Tainmont on Belgian succession law published, in October 2010, in The Electronic Journal of Comparative Law. What she said, seven years ago?: “Besides the likely attribution of succession rights to the surviving legal cohabitant, there is no real political will in Belgium to reform other aspects of succession law. Without a doubt, the task seems colossal, tired on a technical level and little ostensible on the electoral level.”

This proposal, fortunately, makes this assertion false, and this thanks to the perfect collaboration of the government. Mr. Minister, thank you for the Saturday morning, during which you put your battery of experts on the way to concrete the reflections. I also thank very much Mrs. Van Cauter, Becq and Smeyers as well as the opposition because, as I often say in the Justice Committee, even if we do not agree, the members of the opposition do not hesitate, by their knowledge and expertise, to try to make the texts evolve. It does not always work, but sometimes it does! And if it works, it really makes sense. I wanted to tell Mr. Brotcorne, Mr. Van Hecke who is not there, and Mrs. Özen.

At this stage, it is obviously impossible to predict what citizens will do with these new freedoms, these new possibilities. What is certain to date is that the flexibility of the formulas must allow for tailor-made solutions to the diversity of situations that may be encountered.

It is now up to the citizens, to all of us, to give this new field of freedom the reliefs of life that will suit it.

Mr. Speaker, first and foremost I would like to emphasize – I am not the first to say – that the present bill came into being after a very intense collaboration between members of Parliament, experts – too much to mention, but there are already two important ones on the tribune – and the Cabinet of the Minister of Justice.

Mr. Minister, you were also present for hours when we were invited to your cabinet on Saturdays for the discussion of the texts. I don’t know if that’s a habit. If so, then that is very good; I found it all in all a beautiful achievement of yourself that you dedicated there, together with us, your Saturdays.

I would like to express my thanks to the Cabinet, the experts Goossens and Casman and all the others, for ensuring that political decisions could be made after thorough debates and with knowledge of matters. We didn’t go lightly about the reform and ⁇ not about one Saturday ice.

Mr. Minister, I have a small Napoleon sweets for you. It is also an orange candy. You can remove it later. It’s not a whole bag, as Mrs. Becq said later. I think that a reform at once of all the Napoleonic provisions in the form of a whole bag would be too heavy on the stomach. It is already symbolic of the reasonably profound change that we are carrying out in the Civil Code, which since 1804 has been amended many times.

The inheritance right had to follow the spirit of the time for a long time, without prejudice – this is also stated in the government agreement – to family solidarity. The society has changed fundamentally since 1804. Although the Civil Code has already been amended, a global inheritance reform was necessary.

The forms of society have changed. There are more and more newly formed families. Fortunately, we all live longer. The function of the inheritance has changed fundamentally. Mr. Goffin and Mrs. Van Cauter have just referred to a study by the King Boudewijnstichting. This shows that people, more than ever, have the need to decide themselves very specifically about what they will do with their wealth, a capacity that they have often built up after years of hard work.

Several times, from certain angles, the call was heard that the reserve for children could even be abolished. That opinion changes, of course, if one stands on the receiving side. After all, if one is on the receiving side of an inheritance, one is usually won for the preservation of a certain reserve. I think we found a very good balance.

We have ensured a greater freedom of disposal and at the same time we have not completely abolished the reserve. We have retained that reserve for children, though it is less complex than in current law, namely through a fixed fraction.

This is the most prominent reform in the present bill. There are some other, very important, profound changes. One of the most important is the appreciation of the donation. In current law, a donation of movable goods is treated differently than a donation of immovable goods, if it concerns their valuation at the time of the distribution, the settlement of the inheritance or if it needs to be deposited or shortened.

With the reform, more attention is paid to the will of the donor. The classic example is that of a testator who during his lifetime gives 200 000 euros to one of his children, in the form of a sum of money, and gives his other child a property worth the same 200 000 euros. Here one probably once had a certain equality in mind, but de facto there was no equality in appreciation at the time of death. That equality is now being established and will be expressed.

A very important part of the reform is the possibility to conclude an inheritance agreement, a derogation from the principle ban on clauses relating to an unopened inheritance. It will be possible to conclude an agreement on an inheritance with the heirs during their lifetime. In this way, one can indicate what one wants to give to whom and especially why. This is very important because it gives all parties – all heirs must be present – the opportunity to talk within the family about that inheritance in order to find a balance during the lifetime of the testator.

The reform thus meets the social desire for more autonomy, on the one hand, and more family peace, on the other. In this way we avoid long procedures afterwards on the distribution of the inheritance at a time when one can no longer find out the ratio of the testator or decujus as well.

During the hearings, several experts have rightly pointed out the serious renunciation that may be associated with the conclusion of such an inheritance agreement. Indeed, it may be that when a party finds that consensus, it can give up the rights to which it is effectively entitled only thirty years later. In such a decision, it is obvious that there are sufficient safeguards to ensure that everyone knows very well what he decides and what the legal consequences of that decision are for something that hopefully will have its effect only much later.

We believe that the freedom to be assisted must be accompanied by the freedom not to be assisted. These words do not come from me, but from Professor Casman.

I mean by this that there must be sufficient safeguards so that everyone decides with knowledge of matters, but that one is not obliged to pay another own counsel. There is no obligation for the parties to consult, in addition to the instrumenting notary, another notary or lawyer. A notary who performs his functions properly is notary of all parties and provides the possibility of an individual interview with each of the parties. Furthermore, each party can be assisted. An informational meeting will be held by the notary.

Thus, in a nutshell, I crossed the strengths of the proposals of colleagues Van Cauter, Goffin and Becq, whom I also thank, along with our experts and the minister.

During the hearing in the committee, members of the opposition were also active. Mrs. Ozen was present. Mr. Van Hecke had a contribution. Thank you for the constructive way in which the texts were discussed in the Committee on Justice, which emphasize the strengths that the N-VA group fully supports. It implements part of the government agreement. The desired balance is achieved. It is a first important step.

I hope – my colleagues just expressed this desire – the reform of marriage property law next year will be a second step in the global reform.

Mr. Speaker, Mr. Ministers, Colleagues, who of you has written a will and officially registered it?

Approximately 100,000 people write a will every year, but apparently we are not involved. It turns out that 30 percent – it may be slightly less, as it is not purified numbers – makes a will, because one wants to deviate from the legal inheritance in a more or less degree. Also, a study by the King Boudewijnstiftung teaches us that more and more people want to settle specific situations related to the inheritance right, because they want to provide additional advantages and gifts to loved ones or children who have been given some less opportunities. The legal framework from which one can deviate remains. The remaining 70 % do not make a will because it does not pay the effort or because one relies on the current legal devolutionary system, to which colleague Goffin referred later. We did not want to violate that basic confidence when we started working on inheritance rights in Parliament.

Therefore, it was also necessary to connect our discussions with the actuality. It has already been mentioned that in the Napoleonic law, which forms the basis of our law, the family structure, which remained unchanged over time, and the property were important. Today we see many more different family structures. Furthermore, the moving capital, for example a securities portfolio, is often as important as the real estate. All this underscores the importance of reform.

As stated in the government agreement, we want to give greater freedom, but at the same time we do not want to let go of family solidarity. This was not only reflected in the discussion, but has also been reflected in the inheritance law.

I will not overtake all the major power lines, although I had noted them all.

There are the more sexy parts that the media has already communicated, including the fact that the fixed-available part grows. In contrast, there is a controversy that only half of the inheritance can be distributed to the children. Even today we can see an inequality between families with one child, which receives half, and families with three, four or more children, where three-quarters of the inheritance must be distributed to the children.

It is true that by increasing the available part, one creates more space. We and our party dedicated study days to a global reform that included that element. We then bowed around the question of whether and how we could develop a arrangement for newly formed families and testators who wish to give a child with a disability something extra. In our view, the simplest and most legal certainty formula consists in increasing the available portion so that the testator can settle his inheritance in all freedom.

At the same time, we want to maintain the reserve for the longest-lived partner. This means that half of the inheritance and at least half of the family home are reserved for the longest-lived partner, if there are children. The reserve will be abolished for ascendants, but there will be a maintenance obligation.

Another big chapter, which has reached the media, is about the famous inheritance agreements. Therefore, the question arises whether one can give up his reserve in advance. We wanted to emphasize the guarantees. Subsequently, colleague Smeyers also referred to this.

We must continue to reiterate that stakeholders should be able to inform themselves. We put a great responsibility on the notaries. It is their responsibility to inform people properly. This does not necessarily mean additional costs. After all, I think it is important that everyone knows that he or she may renounce rights. We don’t always know what the future brings.

Furthermore, for us, there must be a subjective balance between all children and heirs, who must be involved in the formulation of the inheritance agreement. It is perfectly possible to give more to one child than to another, because, for example, one child has different possibilities than the other. These guarantees and subjectivity can be taken into account. At the same time, the testator has a calm mind, because he or she knows that his or her children will not argue about the inheritance, since it is well distributed. Therefore, there is a great responsibility on the notaries, of whom we hope that they take that responsibility as much as possible to heart.

Especially as important are the donations in nature, which are valued by value. The colleagues have already discussed this. Ms. Smeyers gave the example of a donation of a property worth 200 000 euros, while in my examples I always use a property of 300 000 euros, but I come from another municipality. At the time of death one may have to deal with a different appreciation and that experienced heirs as unfair. That explains the importance of valuing donations in nature, and then I also talk about securities in stocks and foreign currency, for example. We have been paralyzing and discussing this for a very long time, and often those discussions were very technical. I would like to thank everyone who explained this in a pedagogical way. In this context, it was determined how things should be valued in the future, including indexing.

In addition, the bill contains many other important provisions, such as the distribution of the reserve of the children and of the longest surviving, in which the maximum effort is made to make the reserve of the longest surviving coincide with the available part. The principle that parents want to treat their children equally is reaffirmed. Donations to other heirs fall outside the inheritance, if the testator who wants to specifically benefit other heirs and does not want those donations to be part of the package he or she wishes to distribute globally. Thanks to these provisions, donations can also be granted through the children to grandchildren and a part of a future inheritance can be passed.

Finally, I will mention the extended transitional arrangement, so that it can be taken into account what people wanted before the adoption of the new legal provisions.

We have met a lot about this inheritance. I honestly admit that I actually liked to be able to think and debate in terms of content. We could do that in the committee. A substantive discussion can also be held in the Judiciary Committee.

Inheritance is one thing, succession rights are something else. I think it is important that we continue to make this distinction. It is also important for our colleagues in the various Regions that they take into account the reform as it has happened here today. I know that the Regions and the Flemish Region approach donation rights and succession rights differently. As a result, people do not so much consider the way in which the inheritance right is in place, but rather consider how they can work optimally with their gifting or succession rights. As a result, donations are often done in advance to avoid succession afterwards. This is a call to our colleagues from the West to take our legal conception with us.

Mr. Minister, I think we have reached an important milestone, but there are still to come. At the same time, I also want to raise awareness among my colleagues. In fact, we have tried to remove part of the marriage property from the inheritance, having in mind that we are bringing this package with us in order to bring about a new reform.

A third challenge lies in the finding that there are today as many legal cohabitations as marriages. There are also many people who actually live together for a long time. For me, it is important that we also look at this to see how a default arrangement can be made in this regard, so that other rights can also be granted.

This is done on the basis of solidarity and from the assumption that a lot of people live together legally, not because they are against marriage, but because it is a beginning with no continuation.

I conclude by thanking you, like my colleagues.

Thank you too, Mr. Minister. By the way you have led the meetings, and you are also a bit of a penetrator, you have managed to streamline this whole, based on a lot of work already done in the previous legislature. There was the contribution of many, among others from the notary and the lawyer’s office. Can we say that they were at the table? Several groups have brought their experience and have also brought their technical skills.

I would like to thank some people in particular – they are sitting right in front of me in the tribune. They remind me a little bit of – a female then – Statler and Waldorf from the Muppets Show. We did not always agree in the past, and now not always. I would like to thank you for the patience, creativity and didactic ability, in which you were leading, together with the colleagues, because we actually could make a fun experience together. I hope the next reforms can be done in the same way.

Mr. Speaker, Mr. Minister, colleagues, during the committee meeting a number of people were listed by the majority who undoubtedly deserve it. I would like to add to that today a name from my group, namely that of former sp.a. senator Guy Swennen.

In fact, the present proposal seems, at least for the time being, a final point in sight with regard to a social debate that was put on the agenda about ten years ago by colleagues in the Senate, including the respected former colleague Swennen.

The problem of the so-called fighting traps needed a solution. Systematically, no fewer than fourteen bills were submitted with the same goal each time: the avoidance of conflict by means of a modernization of the current inheritance law. Some of these proposals have since become law. There was, for example, the introduction of the concept of “unworthiness to inherit,” a proposal that colleague Swennen then submitted together with Mrs Martine Taelman, and there was the appreciation of fruit use in conversion.

Other bills already contained the principles that were now again discussed in our committee, such as increasing the freedom of disposal under the testator, by abolishing the reserve under the ascendants and the possibility of reducing the reserve for children to half regardless of the number of children. There was also the equalization of the determination of value concerning donations of immovable or movable property. Furthermore, there was the transition from the input and the reduction in nature to the input and the reduction in value. Finally, the germs were laid to expand the leap of inheritance and to enable inheritance agreements, so that attention is also given to new family forms and the children that arise from them.

Then these proposals, together with others, were bundled into what we dare call the Casman bill, which, however, did not lead to a discussion in the Senate. We would like to acknowledge the merit of colleague Van Cauter to immediately re-submit this readable text and put it on the agenda, with the present proposal as a result.

What is now our intention?

First, after more than two hundred years, a reform of the inheritance law is ⁇ in place.

Secondly, the principles that we have held in the past have remained, although here and there the direction of the march has changed somewhat.

Third, however, we regret the extensive legal anchoring of the maintenance obligation to be borne by an inheritor without children for the benefit of needy parents. How disrespectful we can describe this as a kind of rest house invoice reserve. The article raises questions, such as whether it is still possible to challenge this maintenance obligation, and what its consequence is in relation to the other potential maintenance obligators.

Fourth, we welcome a very extensive opinion from the State Council, which has repeatedly pointed out possible inequalities, and note that those critical concerns are largely addressed by a broad package of amendments.

Fifth, somewhat to our surprise, we heard in the hearings a sort of schism between the Dutch-speaking and the French-speaking professors, in which the latter very strongly paint the possible strong twist between children by the greater freedom of disposal in the head of the testator, which consequently may benefit one child to the detriment of the other children. This possibility cannot indeed be excluded. On the contrary, it must be stated that this possibility still exists and that the demand for greater freedom is specifically based on the expansion of the possibility to equalize all children as much as possible and to meet the reality of many newly formed families.

In conclusion, we can conclude that, despite some shortcomings, we will support this proposal for the modernization of the inheritance law, as a tribute to the merits of the work of the senators in the previous legislatures, in particular our colleague Guy Swennen.

The scope of this modern inheritance law will be revealed in the coming months and years. Of course, it is also important to launch a very clear information campaign on this subject, so that everyone knows what the new possibilities are in the future.

Mr. Speaker, Mr. Minister, dear colleagues, I think we all agree to recognize the high intellectual work carried out by the working group in which you have frequently participated – according to the echoes we have had, which Ms. Casman here presents will ⁇ not deny. You have shown your interest in this bill, which ultimately has only the title of "proposition", but which is practically a government project, which we have known in other subjects.

We had done the same work, Mrs. Becq, remember, for the establishment of the Family and Youth Court but under different political circumstances since we had only one government that was not full-time at the time, which is not the case now.

The discussion in the committee was frank and open. Objectively, we must recognize that our inheritance right ⁇ needed to be cleaned and rewritten to be more understandable, praiseworthy objectives.

You know, however, Mr. Minister and dear colleagues of the majority, that if I have been able to join you on a number of points in the overall assessment and, in the end, in the entire text, it is an opposition to your reform that I have expressed and that my group will express again at the time of the vote, tomorrow.

I will explain these reasons that prompt us not to consider that your reform is sufficiently successful and proportionate taking into account the interests of one and the other in succession matters.

Before that, Mr. Minister, I would like to express my regret about the method. I said it in the committee: we know that you are probably working with the same experts and working groups on the reform of marital regimes. Unfortunately, the latter has not been presented to us and we, members of the opposition, do not know the first or the last word. We do not know in what direction it is going.

Everyone knows that in succession matters, before considering succession problems on the occasion of the death of a married person, the first question that will arise – and the answer that will be given to it is important – is to liquidate the matrimonial regime before addressing the succession issues. Here, we are proposed to address a reform of succession rights while we know nothing about the content of the reform of marital regimes.

As I suggested, we had to work on all the texts. And if we were not able to do so, we would have had to do the opposite and work on marital regimes first, and then work on succession rights reform. This further aggravates our concern in the context of the examination of this bill.

Mr. Minister, dear colleagues, I have already said all the good I think about the introduction, among other measures of reform, of the possibility for families to agree from now on a succession pact.

At the university, we were taught that the pact on future succession was forbidden in our law. Today we will be able to do it. It is indeed a good thing that families may gather around the table of their counselor, their notary, plan together the different aspects of a future succession by talking to each other, by negotiating, ⁇ by explaining why one of the members of the family or brotherhood is advantageous over another, or that an advantage granted explains itself for one or the other reason that can lead to an agreement.

Nevertheless, I said that your text did not specify sufficiently that situations like these can also generate difficulties or imbalances. We all know that, in a family, the one who is called to settle his succession, the pater or la mater familias, as we would say in another time, can have considerable influence and by his natural or other authority impose it on his heirs. It can also be imagined that, among the heirs of the family, one or the other has an ascendant over his brothers and sisters, for example, and that the balance is not always necessarily achieved or acquired. In doing so, protections may have been needed, protections that should have been more provided in your text.

However, it is obvious that we are making good progress by accepting these pacts on succession to be arranged or on future succession.

As regards succession in general, the observations I have made regarding the text are that, although it is ⁇ an important work from an intellectual and legal point of view, it cannot be denied that it is also a political work. Behind the choices made by the majority, there are real political choices. I will come back.

Let us first clarify what will happen. It is important to remember this. The General Delegate for the Rights of the Child indicated this to us in the note he delivered to the members of the committee: “It is because of his filiation that a child becomes an heir. Succession thus symbolically guarantees the perpetuity of the line of filiation beyond death. The succession comes to play the act of recognition. If this succession is unbalanced, it can be deeply troubling for a child.”

This is the basis, the question that we must have in mind when we discuss the arrangement of our succession right. I had the opportunity to ask, in commission, whether the work of the legislator of 1804 was so obsolete that it had to be wiped out. At that time, the rules of our inheritance law ensured to present an equality between successors. I remind you, dear colleagues, that we came from a situation where, very often, only the sons and not the girls inherited, and most of the time, the firstborn at the expense of the cadets. The legislator considered it necessary to establish a balance in relation to these disproportions. For me, this reform was a progress, which helped to ensure that balance.

Today, it is well felt that the will that presided over the elaboration of this text and the philosophy pursued by its authors are to devote rather a vision that I have called "very liberal" of things, in the sense that they start from the principle that it is the autonomy of the will of the testator that must be privileged and that it is to him that it must be offered the opportunities to regulate his succession according to what he believes he should do. It does not matter to the limit the children he could have from a first bed, those he could have from another, the spouses who could have succeeded.

Several speakers relied this afternoon on a study by the King Baudouin Foundation, of which we heard collaborators in committee. Some of you forget, when they cite it, that while this study considers that it is important to prioritize the autonomy of the will, it also considers that there is some ambivalence among the respondents. They all assuredly say that they want to be free, but if they are asked to put themselves in the place of the children or the surviving spouse, their answer is to invoke the need for protection, which is therefore not definitively excluded.

Yes, we see well that the difficulty that arises in the elaboration of a text such as this is to find a balance between the notion of the autonomy of the will – which is perfectly acceptable and defendable – and the necessary family solidarity when it comes to issues of inheritance sharing of a heritage.

My feeling, shared by my group, is that the choice of a valuation of individual freedom to organize its succession comes, for a large part, to fundamentally deconstruct our succession right. It is not that it is not necessary to modernize it, Mr. Minister, dear colleagues. As I have said many times, it was important to do so. By the way, one of the positive objectives of this reform is this modernization and greater readability.

But the significant increase in the available quota, which is no longer modulated but which is fixed by office to half the inheritance mass, and regardless of the number of children in the family, the disappearance of the modulation of the inheritance reserve according to the number of children, and the transformation of the reserve into value and no longer in nature are all points that pose problems for us.

The new balances, we can read in the motivation of the bill, are to be found by preserving the interests of everyone. I don’t think we can do it, except in one case: when there is only one child. If there is only one child, the interests of the person who organizes his succession, the surviving partner and the one-child seem actually acceptable, proportionate. On the other hand, as soon as there are two or three children or even more, the imbalance is important and is unacceptable for us. Following the imbalance that will be created between potential heirs, far from decreasing, intra-family conflicts or even conflicts brought before justice will not decrease, on the contrary.

I am not the only one who speaks this way. The State Council, in the opinion that it gave us, said this, I quote: "Given that a modulation of the reserve according to the number of children would leave intact to a large extent the possibility for the disposer to favor, if necessary, any beneficiary of a liberalism, which appears to correspond to the objective generally pursued by the proposal, we can nevertheless not oppose family freedom and solidarity but come to a system that allows everyone to be respected."

Children, in the system you propose to us, will be less protected.

They will be less protected especially if they are two, three or four because fixing the available quota to half, regardless of the number of children, will create difficulties. Nevertheless, it is paradoxical, at the time we live, to introduce a notion such as this and this imbalance at the time when the creation of a filiation bond with respect to a child now falls more under the will and personal responsibility of each one than under biology.

When one today decides to be a parent, whatever the way else, it is consistent that this parent assumes the responsibility. Here, I’m sorry to say this, but if there are several children, we’re going exactly in the opposite direction. If you have decided to have several children, especially with different partners, the commitment will not be the same as if you had only one child and the consequences in matters of succession will be seriously unfair.

As I said earlier, appeals will necessarily and inevitably be brought against this reform or against the applications of this reform. The more children there will be, the less they will be considered worthy of interest and recognition by the legislator. We take the counterfoot of the revolutionary legislator of which I spoke to you just before.

I return to what the State Council said in its opinion, when it asks whether the fixing of a reserve established on a fixed basis, uniformly to the half of the deceased’s estate, regardless of the number of reserve heirs, is compatible with the principles of equality and non-discrimination. We know well that when the State Council points out this kind of situation, it is that, obviously, the answer is in the question it formulates or, in any case, that it is an open door for the Constitutional Court to be invited, if necessary on the basis of an appeal, to ask the question.

The State Council concludes on this question by saying: “Of course, the legislator has a significant discretion, but it must be noted that this establishes a different system of protection between children from different families, which results in privileging single children.”

I didn’t say anything else when I told you that the reform will be acceptable when it comes to single children but totally unbalanced when there will be several children.

Like the State Council, avocats.be has pointed out two main sources of family conflicts: the one that can exist between the last partner and children from other unions and the inequality between children from the same brotherhood. In its opinion, avocats.be concludes that this legislation, even though it presents quite positive advances, will cause numerous and profound conflicts.

If there is an imbalance between the children, there will also be an imbalance between the children and the surviving spouse. This is ⁇ also the biggest weakness of your reform.

Inheritance rights between children and surviving spouses can be very unbalanced, especially if the children are not those of the surviving spouse. Currently, there is already a cumulative of marital benefits and succession rights of the surviving spouse. But the bill we are going to vote for goes further. It decides on the increase of the available quota. Mr. Minister, I say this without knowing what the marriage regime reform will reserve for us. The surviving spouse may collect half of the succession in full ownership with the new increased quota of the successional usufruit on the other half of the succession. It is at this point that the imbalance becomes impressive. Not to mention the reserve that is now in value – too much has been talked about during the work of the committee. The surviving spouse can in fact inherit everything, provided that he compensates in money, even if the deceased had children from a previous union.

In terms of proportionality, I think this situation is unacceptable.

When one privileges the principle of individual freedom, of the autonomy of the will in relation to the heirs and the children inheritors, and when one highlights the link that may exist between the de cujus and the surviving partner, one chooses to highlight a link that, by essence, is likely to evolve, or even disappear – we know the conjugal relations –, while the link of filiation is intangible.

This is not the case for conjugal bonds and yet, we are proposed here to favour a bond that is less intangible than that of filiation, sometimes coming to empty this notion of any sense, in any case in the eyes of succession law.

To have a precise idea of what this can result in reality, the value of the usufruct being calculated on the basis of tables, if we take the situation of a deceased father, whose spouse is 40 years old, and who has the possibility to assign to his spouse half of the inheritance (50 %) plus 62 % of 50 %, we reach 80 % available.

If they have two children, each of them will receive only 9.5% of the succession. This means that compared to the surviving spouse, who is not necessarily the parent of the children and who may have lived only a short time with the de cujus, they will receive nine times less than the spouse.

If he has three children, and if you take advantage of the opportunities offered by the law – the law offers availability that you are not obliged to follow and you adjust his succession as you wish – they will receive twelve times less than the surviving spouse. If he has four children, it will be seventeen times less. Examples can be followed based on the age of the surviving spouse and the number of children.

All this to tell you that the imbalance between the respective parts of the spouse and each child could become impressive, as long as all the opportunities offered by the new legislation are exploited.

The third point. We’ve already talked about it, you’ve already answered it, so I’m not going to extend too much. It concerns a less political but more technical or more philosophical choice: the transformation of the reserve in nature into a reserve in value. By definition, the reserve is the share reserved to the heir, to the inheritance in the broad sense.

It was said just before, "success" is to take the place of someone at his death, to enter in his place in the exercise of his rights and obligations, which makes sense, if one succeeds in nature and if one has a reserve in nature. If nature is no longer expressed but in value, we will no longer speak of an heir but of a creditor. It does not have the same connotation. It is in this that I say that it is ⁇ a more philosophical choice, but we are once again moving away from what should be the right of succession well understood, in a coherent and overall way that should be its own. That is why I persist in thinking that your text proposes, ultimately, a radical deconstruction of our right of succession and of the very meaning of transmission.

Mr. Minister, dear colleagues, my group and I can say yes to the reform of succession agreements to allow greater coordination in families, better thought-out and accepted succession planning – this is important – provided that sufficient advice and support are guaranteed.

Yes also to the reform that simplifies and makes things more understandable, though for the profane, this matter will always remain a little harder to understand.

But, on the other hand, no to a reform that will protect less children. You must have understood it.

No to a fractional and incomplete reform that will undoubtedly be aggravated by the reform of marriage regimes.

No to a reform that chooses to promote individualism and which allows to reject in large part the only unfathomable link of filiation, by fixing the available quota, regardless of the number of children, to half the successor mass, which allows to make almost nonexistent the reserve share of children if they are more than two.

No to a reform that will raise more than before one against another the members of the same family, recomposed or not, by reviving the old resentments and by allowing to institute great inequalities in the fratries.

No to a reform that favors in a completely unbalanced way the surviving spouse, yet already well protected at the present time.

No to a reform that empty the term "success" from its substance to replace it with the notion of "belief"; a reform that will undoubtedly accentuate conflicts rather than diminish them.

No to a reform that does not find other solutions for couples and recomposed families than those that exist, increasing the possibilities of injustice.

Despite some progress, overall, our vote on your proposal will be negative.

I am supposed to replace Mr. Maingain, who is very busy at the moment. I hope you do not see any inconvenience.

Ladies and gentlemen, one of our first tasks as a legislator is to bring the law in line with the evolution of customs and the society in which we live. Our succession right, as introduced in the Civil Code in 1804, no longer responds to the evolution of our family models, to the breakdown of the family cell which itself no longer corresponds at all to a whole gravitating around the nucleus that was the pater familias, but to very diverse realities. Marriage is no longer, fortunately, the only possible form of union, giving place, alongside it, to legal and factual cohabitations.

The number of recalled families is also constantly increasing. In succession law, this evolution is observed and highlights new family conflicts to be resolved, during a period already ⁇ painful.

According to the authors of the bill, another phenomenon is observed: that of a growing will of testators to enjoy greater freedom. This proposal therefore seeks to find a difficult balance between greater flexibility for future testators and the necessary protection of heirs and legal certainty for them, while consolidating solidarity mechanisms.

This is a fundamental balance, but it is even more difficult to ⁇ because, for the testator, what is just is not necessarily always equal, while for the heir, the share of inheritance that is assigned to him must reflect his place and the quality of his relationship with the deceased.

In this regard, I must admit that the bill includes some positive advances. The surviving spouse will, for example, no longer be able to request the report of the donations that occurred before he has acquired this quality.

However, I will not be able to support this text for reasons related to both the form and the substance. Regarding the form, I regret, like my opposition colleagues, that the opportunity by the working group currently working on the reform of the law of marriage regimes has not been seized to deepen at the same time the matter of successions, with which the links are obvious.

It would even have been more logical that the text reforming the marital regimes precedes this proposal. Certainly, we were promised that the two reforms would only enter into force simultaneously. The urgency surrounding this bill is therefore no longer justified. Announcing this simultaneous entry into force indeed means acknowledging that, in reality, we could have taken the time to deepen more seriously the question of balances that I have just mentioned. This is regrettable.

It follows that either inconsistencies will be observed, or fundamental points will be missing in this double reform, such as the status of the adopted child, to mention only him. I therefore join the State Council when it confirms that "the regime applicable to successions and liberals cannot be dissociated from the legislation concerning marital regimes."The State Council also asked the question of whether it would not have been appropriate to conduct a joint reform of these two aspects of family marital law.

To come to the bottom, the opinions of experts heard in the committee have – I must say – been quite contrasted on some points. However, there is no doubt that this contrast is explained by a choice more ideological and political than purely pragmatic, as the authors of the bill have wanted to present it to us. In fact, two points are fundamentally questionable. The first concerns the reduction of the children’s reserve to half the defective estate, regardless of the number of children, i.e. of reserve heirs.

As highlighted by several professors, including the professors Renchon and Van Gysel, but also the State Council in its opinion of April 20th, this reduction is problematic with regard to the principles of equality and non-discrimination, consistent with articles 10 and 11 of our Constitution, since it would considerably benefit single children. The single-child reserve will ⁇ double the benefit of children forming a two-child brotherhood and triple in the case of three-child brotherships.

Certainly, there is a natural inequality in matters of succession between the single children and the children of a more or less large brotherhood, but this inequality is considerably reinforced by the proposal, an inequality which should rather be mitigated.

Children are also totally disadvantaged compared to the last partner who thus becomes the classical heir and this, in an Anglo-Saxon design of the family cell, as explained by Prof. Van Gysel. It follows that the horizontal bonds of the deceased with his last spouse outweigh the vertical bonds of the deceased with his children, in particular if they come from a previous union.

This situation appears to us to be unfair not only with regard to the importance of the best interests of the child and the bond of filiation, an intangible and permanent bond by definition, but also with regard to the complementary inheritance rights to which the surviving spouse is entitled, namely the preferential allocation of family housing and the right of veto on the conversion of the usufruct into preferential goods. It would thus be accepted to consider that the psychological and legitimate attachment of the surviving spouse to certain property would be higher than that of children. I cannot conceive it, in particular in view of the objective pursued by the proposal, namely the reconciliation of the interests of all the parties concerned.

More pragmatically, limiting the reserve to half the estate will not reduce family disputes and, consequently, succession disputes. And the opposite! Professors Renchon and Van Gysel have confirmed that the majority of the conflicts that are brought today before the court and which can be very violent, originate either in an unequal situation between children or in a confrontation between children and a spouse from a later marriage. This data seems to me important in view of the government’s willingness to reduce the labor burden of the courts, in this case the family courts. I therefore regret that the proposal was not in the direction of a modulation of the reserve according to the number of children.

The second point concerns the transformation of the reserve in nature into a reserve in values. This can be understood in the first place with regard to the evolution of customs and the facilities resulting therefrom; for example and mainly for buildings that are impossible to share as such between the different reserve heirs. However, this development does not seem to take the right path.

First, it can be very badly experienced to receive only money instead of property to which the heir was legitimately attached. Secondly, the reserve in values would force the reserve heirs, who have not been assigned property, to wait for the completion of the liquidation and sharing operations. Finally, and more fundamentally, children would thus become merely creditors of a sum of money.

As stated by the Council of State, "if one can understand the will of the authors of the proposed law to favor the ratio or the reduction in value, it may however appear disproportionate in view of the advanced justifications to definitively exclude any possibility for the disposer to impose on its heirs the ratio or the reduction in nature. Such definitive exclusion constitutes indeed a significant restriction on the autonomy of the disposer.”

As for succession agreements, it was time for the principle ban on future succession agreements to be eased. These allow for a living agreement of the future testator, which can also help to leave the mind quieter. However, one should not conceal another reality of families, namely more influential or less affirmed members who would give in more easily in the face of possible pressures on future succession.

It is therefore necessary to make sure that each party is certain and aware of what it gives up. The succession pact is only acceptable if it is well understood and freely consented. The role of the notary is, in this matter, primary and I trust the profession. But not every family is equal in terms of access to the advice of a notary and his good understanding. I would have therefore wished that the proposal provided for additional guarantees.

From the study “Perceptions and expectations in matters of succession law in Belgium” which was presented to us by the Roi Baudouin Foundation, it appears that Belgians expect precautionary measures against the risks of abuse or excessive influence of a parent or groom. According to the Minister, it takes into account the concerns of members about influences or pressures that could be exercised by providing many formalities.

Sorry, but I still do not see how these formalities prevent such pressures. I regret, furthermore, that the proposal does not address the injustice arising from situations where a child has taken special care of a deceased then alive, unlike others, and where the inheritance is shared in equal parts. Certainly, sharing respects the principle of equality but we know that differences in treatment can be justified without, however, constituting a discrimination. For example, a compensation mechanism could have been proposed. For all these reasons, my group will not support this bill as it does not operate the promised and necessary balances in the matter.

I thank you.

Mr. Speaker, I would like to thank, as my colleagues have done, for the very constructive cooperation; I also want to thank the experts who watch us from the gallery, Mrs. Casman and Mrs. Goossens, Mrs. Van Cauter, Mrs. Becq, Mrs. Smeyers, the respectable members of the opposition. I think we have come to a text that...

M. Goffin, you have forgotten, but it is because you always think of you. (Hilarity is

So we have achieved a social balance, as the government agreement requires. This is the Bible that we try to keep as much as we can.

It is a very ambitious Bible. You know that I ⁇ did not write it, as far as Justice is concerned, but bringing solidarity and freedom of disposal to a new socially acceptable balance was the goal here.

Therefore, the reserve is now limited to half and not more than three-fourths because the autonomy of the citizen in this area needs more margin.

I am always surprised to find that this increased freedom is placed in the context of a competition between children and the surviving spouse.

Let’s be clear, the available portion can in any case also be given to one of the children. I think, for example, of the child who needs more care than others, like a disabled child. Why think that it is always the surviving spouse who will benefit from it?

The [...]

Everything is possible, Mr. Brotcorne. But as you say no all the time, I say yes.

Furthermore, it is important to emphasize, Mr. Brotcorne, that we will never agree on the methodology. You are of such perfectionism that you should have the plan to improve the world before you begin to reform it. In doing so, you will never reform anything.

( ... )

I understand your legal methodology. But this is a reproach you constantly make to me. And I always answer you by giving you the same answer because you do nothing, if you want to do everything at the same time.

That said, I can quite calm your fears about the surviving spouse. We have no intention of extending the rights of the latter, especially not of the second surviving spouse who, in general, from a sociological point of view, is a younger woman who married a man who lost his first wife or who divorced from the latter.

I also think it is interesting to make it clear that the contribution and the reduction in value are the rule from now on. I think this is a healthy view, the only reasonable and feasible, even with the wealth situations we know today. The valuation at the time of the transfer of ownership, usually the donation, is, by the way, the best time to leave, with an indexation that will be the same for everyone.

Madame Caprasse, I have well understood that you do not like too much that in terms of future succession pact, as it is generally called, the formalities do not sufficiently protect the parties. Honestly, if the possibility of a two-time appointment before the notary and the obligation for the notary to indicate that it is permissible to be assisted by a colleague or other counsel, such as a lawyer, are not sufficient, then no provision will ever be satisfying in your eyes.

In this sense, I consider that we have done well to extend the possibility of the succession pact, in so far as it constitutes a beautiful alternative to the testament.

It is correct, Mrs. Becq, that a lot of wills are made, but I think many people will feel liberated by the possibility to enter into an inheritance agreement that is well thought out and well thought out and unites all heirs over an existing number of properties at that time.

Thank you again, Mr President. I would like to leave it here. I wish you a good course of work tonight.