Incapacity to receive

Thu 03 November 2022, Philippe Ropenga Incapacity

You know that this blog focuses on practical aspects of succession law to uncover trends that have an impact on law practice. The second post of this blog dates back to 2017 and deals with testamentary freedom.¹ This one deals with incapacity from a different perspective. Some professionals who assist an ill person until he or she passes away are specifically incapacitated by law and gifts that they may receive are null. It is not the donor but the donee who is incapacitated. They are different incapacity regimes that specifically address the reception of gifts. Article 909 of the French civil code incapacitates healthcare professionals. Article L. 116-4 of the French Code de l'action sociale et des familles incapacitates other professionals who are not healthcare professionals. This kind of incapacitation may be seen as unconstitutional because it restricts the constitutional right to Property as protected by Article 17 of the Declaration of Human and Civic Rights of 26 August 1789.

When the French Conseil d'État or Cour de cassation has a doubt about the constitutionality of a statutory provision, it can refer the case to the Constitutional council that will issue a preliminary ruling on constitutionality. The case is then decided by the Cour de cassation if it is a civil, commercial, or criminal matter. If it is not, it will be decided by the Conseil d'État. The supreme constitutional court has issued two preliminary rulings regarding incapacity to receive. The Cour de cassation is the supreme court that has jurisdiction over these matters. These cases do not deal with occasional gifts that are a given as a sign of gratitude; these are authorised by Article 909 of the French civil code.

Let us link these constitutional rulings with cases from the Cour de cassation, including some that you already know to uncover the conceptual trend behind them.

A professional who is paid to help a person at home and does not provide any kind of medical assistance challenges the constitutionality if her incapacity to receive. The Constitutional council decides that it is unconstitutional for two reasons²:

1. The fact that an elderly or disabled person needs home help does not mean that this person is vulnerable. This should remind you the distinction between disability and incapacity.³
2. The donee is incapable to receive even if he or she manages to prove that the donor was not vulnerable.

The same jurisdiction has later examined a claim brought by a nurse andfound the incapacity to receive regarding healthcare professionals constitutional for two reasons⁴:

1. The legislator protects people because their condition is a source of vulnerability.
2. This provision only restricts freedom in case where the care provided is related to the disease that is the cause of the donor's death.

It is however difficult how the condition itself may explain this difference in incapacity regime since the person who needs help at home and assistance from a nurse because of his or her condition would be less protected from the deadly cupidity of a home help than from that of a nurse.

The Constitutional council has added that special relationship binds the healthcare professional and the patient together.⁵. This special relationship is the element that makes a difference between the two cases.

Let us now see that these cases are part of a wider picture.

The incapacity to receive at the date of the will or legacy not at the time of death.⁶ This is consistent with other cases regarding incapacity in a succession context.⁷. A gift to a friend who is a physician is valid because the donor has not been treated for his illness by his friend.⁸ A later case from the Cour de cassation had to decide a matter that appealing case that distinguished between the date of the awareness of the symptoms and the date of the diagnosis to apply Article 909 of the French civil code.

A testatrix underwent a scan and an MRI that revealed a mass on a sinus on 2 and 4 October 2012. She wrote a testament leaving a gift to her old friend on 5 October 2012. Later tests were done on the 8 and 9 of October 2012.⁹ The testatrix learned that she had cancer afterwards although she was aware of the unspecific mass before drafting the will. As you know, the Cour de cassation checks whether the law has been well applied by the Court of Appeal.¹⁰ The question that the supreme court had to answer can be formulated as follows:

Does the word disease of Article 909 refer to the awareness of symptoms or to the knowledge of the diagnosis?

The Cour de cassation has followed a strict interpretation stating that the date of the diagnosis did not matter.¹¹

This strict interpretation is not surprising but can have a harsh consequence: When one combines it with the constitutional case above that excludes to possibility to rebut the presumption of estate captation, one understands that the incapacity to receive stops someone from giving to people who supported him or her, as friends should do, because they keep supporting the deceased after the appearance of symptoms that appeared later to be the sign of a deadly disease. When one is in favour of forced heirship as a balance to testamentary freedom as I am¹², it may be difficult to admit that the careless and selfish forced heir is favoured over the loyal friend who has some medical skills. What makes civil law great is that it does not lead to automatic solutions. There should be room for freedom because it fosters civilisation. Napoleon I favoured freedom in private matters such as successions although he was not a democrat.¹³ If people are free, they may do wrong, but they have a chance to do better. The civil code should be different from a penal code to reflect the difference between civil order and civilisation.¹⁴. I am afraid that French lawmakers have forgotten this nuance that makes a distinct body of civil law sensible and useful.

In brief, pay attention to different regimes regarding the incapacity to receive.

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