The will with substitution of de residuo allows the testator to ensure that their heir fully benefits from their inheritance while also providing protection for future heirs.
When writing a will, it sometimes happens that the testator wants their heir to fully benefit from their inheritance while also wanting to ensure protection for future heirs upon the initial heir's death. To do this, the testator may resort to a substitution de residuo.
A daughter, among other things, bequeaths the family home to her mother, with the obligation to hand over the residue to her four nephews upon her death. Shortly before her death, the mother gives the house, free of charge, to another one of her daughters. A year goes by. The four nephews feel aggrieved and ask the latter to hand over the family home to them. After being refused, the nephews address the Court and request a declaratory judgment.
The Court* sides with the nephews. It rules that an heir who receives a property by will with the obligation to return it, before or at the time of their death, cannot dispose of it for free unless the will expressly states that the heirs can dispose of it for free. The substitution de residuo is often used to benefit one person while ensuring that the bequeathed property goes to other heirs upon the death of that person.
Just because the deceased bequeaths their property to someone else doesn't mean they want the property to end up in the hands of a lover, stepmother, or stranger upon the death of that person, to the detriment of their children.
* C.S. 200-05-017420-022, 2003-03-20
