Partition. Succession. Maintenance contract, with the reserve of the usufruct for life, concluded by the deceased with a descendant. Presumption of a disguised donation. Relative nature. Conditions

DREPT CIVIL ȘI DREPT PROCESUAL CIVIL

Abstract

The presumption established under the provisions of art. 845 of the old civil code is of relative nature, and not absolute, as the acquirer of the alienated property has the possibility to prove otherwise, showing the actually onerous nature of the alienation. As an effect of the  presumption of gratuity, if the acquirer did not manage to overturn the presumption, the value of the alienated asset shall be added as a donation to the computing base in order to establish the actual value of the reserve and of the available share, being subject to reduction, if only liberalities prove to be excessive, undermining the reserve. 

Directly successor, within the meaning of art. 845 of the old Civil Code, means a kin in the descendant or ascendant line, which at the time of alienation would have acted in the capacity of heir of the alienator. 
However, if upon alienation there is an immediate successor in the degree of kinship closer with de cujus, the legal requirements to presume the free nature of that act are not fulfilled.