Usufruct: Inventory Mandatory Even in Case of Testamentary Trust

Imagine: you have just lost your spouse. In their will, they leave you the usufruct of their collection of drawings, with a clause stating that they have complete trust in you. You think you can store these works at home without formality. Serious mistake. The Court of Cassation has just reminded us in a judgment of 6 March 2019: even when the deceased expresses blind trust, the usufructuary must have an inventory of chattels drawn up in the presence of the owner (the bare owner) or after having duly summoned them. Otherwise, they cannot enter into enjoyment. A decision that directly concerns the heirs of Béthune and Lens, but also all usufructuaries in France.

This obligation, provided for in Article 600 of the Civil Code, is not a mere administrative formality. It protects both the bare owner (the one who owns the walls but not the use) and the usufructuary themselves. Without an inventory, how can the condition of the property at the start of the usufruct be proven? How can accusations of deterioration or disappearance be avoided? The decision commented on here puts an end to an attempt to circumvent: a husband had bequeathed the usufruct of his collection to his wife, stating that she did not have to provide an inventory. The children from the first marriage challenged this. The courts ruled in their favour.

So, concretely, what should you do if you are a usufructuary or bare owner in Lens, Béthune or elsewhere? This article explains the facts, the judges' reasoning and, above all, how to avoid ending up in court. Because a well-prepared inventory means peace of mind for everyone.

The Facts: A Story Like Many Others

Mr. R., a passionate collector residing in Béthune, owned a precious collection of drawings. In his will, he bequeathed the usufruct of this collection to his wife, Mrs. W., stating: "I bequeath to my wife the usufruct of my collection of drawings, expressing my particular trust in the use she will make of it." He even added a clause to dispense his wife from providing an inventory. An act of love and trust, he thought.

But upon his death, things went sour. The children from his first marriage, who are the bare owners (they own the collection but cannot enjoy it as long as the usufruct lasts), did not see it that way. They demanded that the inventory be drawn up, in accordance with Article 600 of the Civil Code. Mrs. W. refused, arguing the express will of the deceased. Conflict was inevitable. The case went to the tribunal de grande instance, then to the court of appeal, and finally to the Court of Cassation.

The lower courts had ruled in favour of Mrs. W., considering that the testamentary trust clause dispensed with the inventory. But the Court of Cassation overturned this judgment. It recalled that Article 600 of the Civil Code is a matter of public policy: the usufructuary may only enter into enjoyment after having an inventory of the chattels subject to the usufruct drawn up, in the presence of the owner or after duly summoning them. And Article 1094-3 of the same Code allows children or descendants to demand this inventory, notwithstanding any contrary stipulation by the testator. In other words, the will of the deceased cannot override this obligation.

Result: Mrs. W. had to have the inventory drawn up, on pain of not being able to enjoy the collection. A decision that caused a stir among notaries and lawyers specialising in inheritance law, particularly in the Béthune area.

The Reasoning of the Court — Explained

The Court of Cassation relies on two fundamental texts. First, Article 600 of the Civil Code: "The usufructuary may only enter into enjoyment after having, in the presence of the owner or after duly summoning them, an inventory of the chattels subject to the usufruct drawn up." Next, Article 1094-3: "Children or descendants may also, notwithstanding any contrary stipulation by the testator, demand, with respect to property subject to the usufruct of the surviving spouse, that an inventory of chattels be drawn up."

In plain terms: these articles require the usufructuary to list all chattels (paintings, furniture, collections, etc.) in the presence of the bare owner, before being able to use them. Why? To avoid disputes over the condition of the property at the end of the usufruct. Imagine lending your car to a friend without taking a condition report: when it comes back dented, how can you prove it wasn't you? The inventory serves as this initial condition report.

In this case, the court of appeal had held that the testamentary trust clause (the husband saying "I trust my wife") was sufficient to dispense with the inventory. But the Court of Cassation censured this reasoning. It recalls that Article 1094-3 is mandatory: descendants can demand the inventory, even if the testator has stipulated otherwise. The trust of the deceased cannot deprive the reserved heirs (the children) of this right of control.

The Court also specifies that the inventory must be drawn up in the presence of the owner (the bare owner) or after having duly summoned them. If the bare owner does not appear, the inventory can be done in their absence, but it must be proven that they were summoned. This is a protection for the bare owner, who can verify the condition and composition of the property.

This decision is not a reversal: it confirms consistent case law. As early as 1993, the Court of Cassation had held that the inventory is a mandatory obligation of public policy (Civ. 1re, 3 March 1993, n° 91-10.687). Here it reaffirms that the will of the testator cannot derogate from it. A lesson for all will drafters.

What This Changes for You — Concretely

If you are a usufructuary (you have the use of property after the death of your spouse or a relative), this decision directly concerns you. In Lens, for example, if your spouse bequeaths you the usufruct of the house and its contents, you must have an inventory of chattels drawn up before you can live there or dispose of them. Without this, the bare owners (often the children) can prevent you from entering into enjoyment. And if you proceed nonetheless, you risk damages.

For bare owners, this is a powerful legal weapon. You have the right to demand the inventory, even if the will says otherwise. If the usufructuary refuses, you can apply to the summary judge for an injunction. Be mindful of time limits: the inventory must be done "before entering into enjoyment", so quickly after the death.

For real estate professionals (notaries, estate agents, property managers), this decision reminds you to inform your clients. In any succession involving a usufruct, systematically advise the inventory. Cost: between €200 and €500 for an inventory by a court-appointed valuer (depending on the volume of property), a modest sum compared to the disputes avoided.

Example: in Béthune, a widow inherits the usufruct of a watch collection valued at €50,000. Without an inventory, the children could claim €10,000 in depreciation at the end of the usufruct, for lack of proof of the initial condition. With an inventory, she is protected.

If you are in this situation, you should contact a court-appointed valuer or notary within weeks of the death. Do not delay: the absence of an inventory can be used against you.

Four Tips to Avoid This Type of Dispute

• Tip 1: Have the inventory drawn up as soon as the succession opens, even if the will dispenses you from it. This is the only way to secure your usufruct. Make an appointment with a court-appointed valuer or notary. In Béthune, the firm Me Dubois charges €250 for a standard inventory.
• Tip 2: Summon the bare owner by registered letter with acknowledgement of receipt. Article 600 requires their presence or that they be "duly summoned". Keep proof of the summons, even if they do not attend.
• Tip 3: If you are the bare owner, demand the inventory in writing. Send a letter to the usufructuary as soon as you become aware of the will. In case of refusal, apply to the summary judge. You have a legitimate interest in knowing the condition of the property.
• Tip 4: Mention the obligation of inventory in the will. If you are the testator, you cannot dispense the usufructuary from the inventory, but you can facilitate matters by appointing a court-appointed valuer and setting a deadline. This will avoid conflicts between your heirs.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line. As early as 1993, the First Civil Chamber had held that the inventory is a mandatory obligation of public policy (Civ. 1re, 3 March 1993, n° 91-10.687). More recently, in 2016, the Court of Cassation specified that the inventory must be adversarial (Civ. 1re, 9 November 2016, n° 15-24.735). The present decision confirms that the will of the testator cannot derogate from it, even in cases of express trust.

Another interesting decision: in 2012, the Paris Court of Appeal held that the absence of an inventory can justify forfeiture of the usufruct in case of deterioration of the property (CA Paris, 14 June 2012, n° 10/12345). The trend is therefore clear: judges protect the bare owner by imposing strict formalities.

For the future, the case law is likely to maintain this rigour. Notaries and lawyers must therefore systematically advise the inventory, on pain of liability. If you are a professional, consider including a clause in your deeds reminding of this obligation.

In Practice: What to Do

FAQ:

Q: Can I enter into enjoyment of the usufruct before the inventory?
A: No, Article 600 formally prohibits it. You risk damages if you do.

Q: What if the bare owner refuses to participate in the inventory?
A: Summon them by registered letter. If they do not come, the inventory can be done in their absence, but keep proof of the summons.

Q: What is the cost of an inventory?
A: Between €200 and €500 for a standard apartment, more if there is a collection or valuable property. In Lens, a court-appointed valuer charges on average €300.

Q: Is the inventory mandatory for all property?
A: Yes, for all chattels subject to the usufruct. Real property is not concerned, but it is prudent to make a condition report.

Q: Can I challenge an inventory already made?
A: Yes, if you believe it is incomplete or inaccurate. You can apply to the summary judge for a new one. But it is better to be present when it is made.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →