REGARDING JUDGMENT 1/2023 OF JANUARY 13 OF THE TSJIB
The ruling 1/2023 of January 13 of the Superior Court of Justice of the Balearic Islands has caused a media stir and has generated doubts and questions among citizens and legal operators, who are wondering whether the definitions are revocable or not.
To answer this question, it will be necessary, first, to analyze the ruling in question and the previous and current legal regulation of the definition.
I.- THE FACTS SUBJECT OF JUDICIAL CONTROVERSY
A father donated the bare ownership of various properties to his two daughters. The daughters, in contemplation of said donation, defined their legitimate rights in their father's inheritance and assumed the payment of certain sums of money in favor of their other two brothers (this nuance will be highlighted by the Court itself in the ruling).
Subsequently, one of the two daughters was criminally convicted of a minor crime of coercion against her father.
The father notarized the daughter's notice of the revocation of the donation due to ingratitude and filed a legal claim, mainly concerning the origin of the revocation, and also the subsistence of both the definition and the financial commitments with respect to the other two brothers.
The first instance ruling upheld the claim. An appeal was filed and the Provincial Court revoked the first instance resolution. Against this sentence, the father filed an appeal before the Superior Court of Justice of the Balearic Islands.
II.- APPLICABLE LEGISLATION
The legislation applicable to the case is the limited regulation of the definition contained in the Compilation of the Civil Law of the Balearic Islands, articles 50 and 51, today repealed by Law 8/22 of Voluntary Agreed or Contractual Succession of the Balearic Islands.
Articles 50 and 51 do not contain any provision regarding the revocability or not of the definitions.
Article 50
By the succession agreement known as definition, the descendants, legitimized and emancipated can renounce all inheritance rights or only the legitimate rights that, at the time, may correspond to them in the succession of their ascendants, of Mallorcan neighborhood, in contemplation of any donation, attribution or compensation that they receive or have previously received from them.
The definition without fixing its scope will be understood as limited to the legitimate one.
The change of civil neighborhood will not affect the validity of the definition.
The definition must be pure and simple and must be formalized in a public deed.
Upon the death of the deceased, the provisions of paragraph 3 of article 47 will apply, where appropriate, for the purposes of determining the legitimate estate.
Article 51
The definition renders void any provision relating to the legitimate rights of the renouncing descendant, regardless of the date of the will.
Regarding other testamentary provisions in favor of the renouncing descendant, the institution of heir and the legacy charged to the free portion will be valid, in the definition limited to the legitimate one, regardless of the date of the will. In the non-limited case, the property provisions ordered in a will dated after the definition will be valid and those ordered in a will dated earlier will be void, without ordinary substitution coming into play, except for that arranged in favor of descendants of the renouncing descendant who is an only child.
Once the intestate deceased dies, if the definition has been limited to the legitimate one, the renounced descendant will be called as heir according to the rules of intestate succession. If it is not limited, whoever granted it will never be called; Yes, the descendants of the renounced descendant will be, unless the agreement expressly states otherwise or there are other non-renounced descendants or lineages of these.
III.- LEGAL DEBATE: ONEROUS NATURE OR NOT OF THE DEFINITION
Given this situation, doctrine and jurisprudence have had to derive the revocability or not of donations not from the positive regulation of the institution (which says nothing), but from its legal nature.
Indeed, there has been a long legal debate about whether we are dealing with an onerous business or not. If it were considered onerous, we would be within the scope of article 622 of the Civil Code, which establishes that donations with onerous cause will be governed by the rules of contracts, an area in which there is no room to speak of revocation due to ingratitude. If it were not considered onerous, then one could speak of revocation due to ingratitude in accordance with article 644 of the Civil Code.
In any case, we want to point out that, given the scarce regulation of the definition, legal operators had to subsidiary apply the Civil Code, a legal system that not only does not contemplate the definition or any other succession agreement, but even expressly prohibits them.
A doctrinal sector, and the ruling 1/2023, maintain the onerous nature of the definition mainly taking into account "the conditionality required by the regulation of this figure in the Compilation of the Civil Law of the Balearic Islands, which is operative by law when the renunciation of the legitimate or inheritance rights occurs in contemplation of the donation or advantage received from the ascendant." This conditionality is expressed in the first paragraph of article 50 of the Compilation.
Article 50 (reiteration)
By the succession agreement known as definition, descendants, legitimaries and emancipated people can renounce all inheritance rights or only the legitimate rights that, at the time, may correspond to them in the succession of their ascendants, of Mallorcan neighborhood, in contemplation of any donation, attribution or compensation that they receive or have previously received from them.
However, part of the doctrine maintains that in reality there is no compensation for the ascendant, since he does not receive anything in return. In effect, the ascendant gives in exchange for the son renouncing his claim to the legitimate inheritance. Claim that will never be directed against the ascendant, but, in any case, against the heirs of the ascendant.
It should be noted that in the specific case that is the subject of the ruling, the daughter not only renounces her legitimate interest but is also obliged to pay certain sums of money in favor of her other two brothers. This condition, according to the ruling, makes it difficult to maintain the free nature of the definition.
IV.- DOES THE SITUATION CHANGE WITH THE NEW LAW 8/22 ON AGREED OR CONTRACTUAL VOLUNTARY SUCCESSION OF THE BALEARIC ISLANDS?
First of all, it should be indicated that the single transitional provision establishes that the law will be applicable to agreements that are formalized after the entry into force of the law and also to those formalized previously if the parties voluntarily submit to it.
Single transitional provision
Irretroactivity and voluntary retroactivity
This law will be applicable to agreements that are formalized after its entry into force.
Succession agreements of any type formalized prior to this law may be subject to it by the express will of both contracting parties.
Article 43 of the law regulates the causes of revocation:
Article 43
Reasons for revocation
The disposer or definer may revoke the definition agreement in the event that the definer incurs the causes established in article 29, points 1, 2, 3 or 4 of this law. The causes provided for in number 4 of article 29 will be just causes of disinheritance.
The concurrence of the causes of unworthiness of point 1 of article 29 will mean the definitive loss of the right to legitimate compensation.
On the contrary, the renunciant will recover his right to the legitimate:
1º In case of revocation due to non-compliance with the conditions or charges imposed on the defined party, in the definition agreement formalized in accordance with the first paragraph of article 39 of this law.
2º In the event that the revocation has proceeded by application of cause number 3 of article 29 of this law.
The renouncer will also retain his right to the legitimate interest in the event of loss of ownership of the donated assets as a result of a cleanup procedure due to eviction.
Article 29 of the law establishes:
Article 29
General causes of revocation
The donor can also unilaterally revoke the universal donation:
1º In the event that the donee incurs a cause of unworthiness, in the terms provided for in article 7 bis of the Compilation.
The causes provided for in letters a) and b) of point 1 of article 7 bis mentioned above will imply the automatic revocation of the donation, unless the donor expressly states otherwise. Likewise, the donor can forgive them in a public document.
2º In case of voluntary non-compliance with the charges expressly imposed on the donee, provided that the donor has not chosen to demand compliance.
3º Due to breakdown of personal relations between donor and donee, provided that it is not for reasons attributable exclusively to the donor.
4º In case of incurring ingratitude. In particular, the following are causes of ingratitude:
a) Having improperly denied food.
b) Having abused him physically or mentally.
5º If the donor has made an excusable error regarding personal qualities or facts of the donee that entail a sudden loss of trust, in the sense that if they had existed at the time of granting the universal donation, the donor would not have chosen him as heir.
6º For another lawful cause provided for in the universal donation. In this case, your certificate may be requested from the Property Registry.
Article 7 bis a) and b) of the Compilation determines:
Article 7 Bis
1. They are unworthy to happen:
a) Those convicted in a criminal trial by a final judgment for having attempted the life or serious injuries against the deceased, his spouse, his stable or de facto partner or any of his descendants or ascendants.
b) Those convicted in a criminal trial by a final sentence for crimes against freedom, moral integrity and sexual freedom, if the offended party is the perpetrator, his or her spouse, his stable or de facto partner or one of his descendants or ascendants.
…
Therefore, in my opinion, the definitions formalized as of January 17, 2023 (date of entry into force of Law 8/22) are revocable in accordance with the legal provision.
In fact, the sentence 1/2023 itself, almost at the end, states that the daughter's conduct is not ignored, "revealing the legal reproach and the devaluation of the conduct inherent in the conviction", but that it cannot imply a revocation of the donation without "a legislative provision that authorizes it and is applicable to the case."
This legislative provision, the one relating to the revocability of succession agreements (and, in particular, the definition), is now included in the new Law 8/2022, for cases such as the one that was the subject of judgment in ruling 1/2023 of the Superior Court of Justice of the Balearic Islands.
