Collusive Transfer by the Deceased (Muris Muvazaası)

How the case typically develops

During his or her lifetime, the deceased transfers one or more immovables to one of the children, a grandchild or a third party by showing the transaction as a sale at the land registry. In reality no price was paid; the purpose of the transaction is to reduce the shares of the other heirs. When the succession opens, the other heirs learn of the transfer and bring an action for annulment of the title deed and re-registration.

The legal basis is the Unification of Case Law Decision No. 1/2 dated 1 April 1974. That decision produces two fundamental consequences:

1. The apparent sale transaction is invalid because of collusion (muvazaa).
2. The concealed gift transaction is invalid because the gift of an immovable was not made in official form.

If the alleged collusion is established, annulment and re-registration are assessed within the claimant’s request and inheritance share.

Who may bring the action

Holding a reserved share is not required. Anyone who has the status of heir may bring the action in proportion to their share in the inheritance. In this respect collusive transfer by the deceased differs from the action for abatement (tenkis), which requires a reserved share. A person who has renounced the inheritance cannot bring the action.

The action is brought in proportion to the share in the inheritance; the claimant seeks annulment and re-registration for his or her own share and cannot seek registration of the whole property in his or her name.

What the court looks at

No single document is decisive in these files; the court assesses the deceased's true intention as a whole. The criteria taken into account in practice:

• Was a price paid? Bank records, receipts, whether a claim of cash payment is supported by witnesses.
• Is the price proportionate to the value of the property? A price shown far below the market value on the date of transfer is a strong presumption in favour of a gift.
• Did the transferee have the means to pay? The defence that a person with no income or savings on the date of transfer "bought" the property is weak.
• The deceased's relationship with the other heirs. Family disputes, the existence of an heir excluded from the transfer.
• Who used the property after the transfer, who collected the rent, who paid the taxes?
• The deceased's state of health and living conditions on the date of transfer.

A collusion allegation may be proved by witnesses; the requirement of written evidence does not apply in this action. For that reason the statements of neighbours, relatives and the neighbourhood headman (muhtar) who know the facts can change the course of the file.

Is there a time limit

An action for annulment of the title deed and re-registration based on collusive transfer by the deceased is subject neither to a forfeiture period nor to a limitation period. It may be brought years after the succession opens. Two realities should not be overlooked, however:

• If the property has been transferred to a third party who acquired it in good faith relying on the register, the acquisition is protected; compensation or other remedies may separately be assessed on the facts.
• Witnesses grow old, records disappear, the retention period for bank transactions expires. The absence of a time limit does not mean that waiting is free of cost.

Transfers made for a price

Not every transfer is collusive. A genuine sale or lifetime care contract for consideration is distinct from a gift. A lifetime care contract is onerous where a real care obligation is undertaken. If an apparent care contract conceals a gift intended to deprive heirs, the true intention and the conditions for collusion must be examined.

This page is for general information purposes; every file is assessed on its own documents and witness statements.