Succession and Minors: Valid Will and Inheritance Rights
Carlos Mendes died on 1 December 2024, leaving a will dated 10 January 2020. The will left 50% of his estate to his second wife, 30% to his son from his first marriage, and 20% to a charity. Carlos had three children: two from his first marriage (ages 30 and 28) and one from his second marriage (age 10). His estate is valued at 20 million Kz. The 10-year-old child’s mother claims that the will is invalid because it does not provide for the minor child, and that the minor is entitled to a forced share. The Civil Code (Family and Succession Law) requires that at least 50% of the estate be reserved for legitimate heirs (children). Carlos’s will gave only 30% to one child and nothing to the other two children.
1. Is the will valid? Discuss the forced heirship rules and the rights of the minor child.
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The will is partially invalid. Under the Civil Code, legitimate heirs (children) are entitled to a forced share, which is at least 50% of the estate. Carlos had three children, so the forced share must be divided among them. The will gave only 30% to one child and nothing to the other two, which violates the forced heirship rules. The 10-year-old minor is a legitimate heir and is entitled to a portion of the forced share. The will can be valid for the disposable portion (50%), but the forced portion must be redistributed. The charity and second wife may receive from the disposable half, but the children must receive at least 50% collectively. The will is invalid to the extent it infringes on the forced shares.
2. How should the estate be distributed to comply with the law?
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The estate is 20 million Kz. The forced share is 50% = 10 million Kz, which must be divided equally among the three children (since they are all legitimate heirs). Each child receives 10/3 ≈ 3.33 million Kz. The remaining 10 million Kz (disposable portion) can be distributed according to the will, but the will’s allocation must be adjusted because the will gave 50% to the wife, 30% to one child, and 20% to charity. The 30% to the child is part of his forced share; he should receive an additional 0.33 million to reach 3.33 million. The other two children receive 3.33 million each from the forced portion. The wife and charity share the disposable 10 million according to the will, but the will’s percentages (50% and 20% of total estate) would exceed the disposable portion if not adjusted. The court must reduce the wife’s and charity’s shares proportionally to fit within the disposable 10 million, after satisfying the forced shares. The minor child’s share must be protected, and a guardian may be appointed to manage it.