1. Case summary
The defendant (represented by us) is the third son of the deceased, and supported the deceased and his mother, who was currently also dead, 바카라 온라인 1998. On March 13, 2006, after the death of the mother, the defendant was transferred certain real estate owned by the deceased (“Real Estate”) by gift. When the deceased died on April 16, 2020, the plaintiffs, the eldest daughter and the fifth son of the deceased, filed a lawsuit against the defendant, claiming the return of legal right shares of Real Estate.
2. Our argument and the court’s judgment
We argued that Real Estate was given as a gift in exchange for the defendant's support of the deceased and his widow 바카라 온라인 around 1998, and therefore, Real Estate should be excluded 바카라 온라인 the “special income” subject to the return of legal right shares of a decedent’s estate.
The 1st Civil Division of Seongnam Branch of Suwon District Court determined that Real Estate is included in estate that serves as the basis for the calculation of legal right shares, but where and to the extent that treating property received by an heir 바카라 온라인 an ancestor while he was alive as an advance for the inheritance of estate results in undermining practical equality among co-heirs, like a case where a heir who received a gift 바카라 온라인 an ancestor while he was alive specially supported the ancestor or made a special contribution to the maintenance or increase of the property of the ancestor, and the gift given by the ancestor while he was alive contained the meaning of compensation for the above special support or contribution by the heir, the gift made while the ancestor is alive may be excluded 바카라 온라인 special income. Further, the court judged that Real Estate given by the deceased to the defendant was compensation for the heir’s special support or contribution, and therefore, it was appropriate to exclude it 바카라 온라인 special income, and dismissed all claims made by the plaintiffs on the following grounds: ① In this case, the defendant lived with the deceased and his widow according to the wishes of the parents 바카라 온라인 around 1998; ② the fact that the defendant was given Real Estate when six months had elapsed since the death of the widow, and even after receiving Real Estate, he supported the deceased until April 16, 2020, when he passed away; and ③ there is no evidence to admit that the other heirs besides the defendant supported the deceased, and the other heirs did not raise any objections 바카라 온라인 around 2006 when the defendant was given Real Estate until the death of the deceased.
3. Meaning of the judgment
The basic position of the Supreme Court precedents is that the defense of contribution is not admissible in a lawsuit for return of forced shares (Supreme Court Decision 2013Da60753, dated October 29, 2015 and many others).
However, the Supreme Court ruled that where an heir who received a gift during the deceased’s lifetime formed a family community with him, devoted each other to acquire and maintain property, which is the economic foundation of the family, and continued to nurture and support their children, excluding property subject to the gift 바카라 온라인 special income is not contrary to equality in the relationship with co-heirs who are the deceased’s children (Supreme Court Decision 2010Da66644, dated December 8, 2011). This is a ruling that seems to practically recognize contribution made by the deceased’s spouse with regard to gift made while the deceased was alive.
Regarding the claim for the return of the forced share of estate filed against an heir who supported an ancestor for 34 years, the Supreme Court has recently held, “If a gift made by the deceased to a specific heir during his lifetime was intended to give benefits as an evaluation or compensation for the heir’s support or contribution, etc. and the gift does not reach the extent of breaking equality in the relationship with the other co-heirs, it is reasonable to exclude the property subject to the gift 바카라 온라인 special income.” With regard to the case represented by us, the Supreme Court explained, “It is reasonable to see that the gift of Real Estate by the deceased to the defendant is compensation for the defendant’s payment of his father’s debt in the past, reward for the defendant’s efforts and contribution to support the elderly deceased who had difficulty maintaining a living by his own strength or work for a long time, and compensation for completely entrusting the rest of his life to the defendant. Therefore, Real Estate should not be regarded as an advance payment of estate that is the grant of profits free of charge, in other words, special income which is subject to the return of a forced share. Furthermore, considering the duration and contents of support provided by the defendant for the deceased without the plaintiffs’ assistance, the defendant's economic burden due to the support of the deceased, and the age and health condition of the deceased at the time, it is difficult to see that practical equality is broken in the relationship with the plaintiffs as co-heirs even if Real Estate is excluded 바카라 온라인 special income.” Finally, the Supreme Court rejected the claim for the return of the forced shares made by the other co-heirs. (Supreme Court Decision 2021Da230083, 230090, dated March 17, 2022). The Supreme Court took an attitude that it seemed to practically allow the defense of contribution for children who supported the ancestor.
This ruling asserts the similarity of this case with the above two Supreme Court rulings, and the defendant's de facto contribution defense is accepted. In the future, even if you cannot make a direct contribution in the case of a claim for return of forced shares, you will be able to actively assert the de facto contribution defense that the portion of contribution should be excluded 바카라 온라인 special income.
□Attorneys in charge: Noh Man-kyeong and Yoo Yeon-Bi
