International will rescue

Fri 18 January 2019, Philippe Ropenga Will drafting

Evaluating the validity of a testament is a complex matter when formal requirements have not been met. Formalities regarding wills are required for three reasons: they are the manifestation of a person, i.e., the identity of the testator as well as his soundness of mind; a mean to determine the nature of the testator's wishes, and last but not least, formalities reveal that the deceased wanted the deed to operate as a will. Formal requirements often guide the practitioner to a more predictable solution. There are usually met. It unfortunately is not always the case. Should a judge consider that everything in a testament is meaningless as soon as he notices anything wrong? It is a difficult question that can lead to a harsh result. The French Cour de cassation, i.e., the court that deals with civil, commercial, and criminal matters, has decided a case showing how a will could be saved from invalidity.¹ The integrity of a testament is a matter of soil and climate (1). These two elements have to be considered to understand how a will has grown before the testator's death (2). When a judge is convinced that the will is strong despite formal weaknesses, he can decide to preserve it from invalidity.

1 A matter of soil and climate

The integrity of at testament mainly depends on the domestic soil (1.1) and is influenced by the international climate (1.2).

1.1 The domestic soil

There are two ways to write a testament under French law: it can be handwritten by the testator² or dictated by him to a notary who writes it down in a public officer deed³. These formal requirements are not interchangeable since they are involved in the drafting of two different deeds. A person can write a will by hand in front of a notary; it will be valid and have the effect of an olographic testament. If he intends to leave a will that has the effect of a public officer deed, Articles 971 and following of the French civil code provide that the testament recorded in the public officer deed has to be dictated to a notary. It otherwise is not valid and cannot have any effect. Two nephews were to receive a share of the estate of the deceased according to a will recorded in a public officer deed. The deed also contained provisions regarding gifts to the Church. The two nephews were heirs of the testator anyway. They challenged the nature of the testament. It appeared during the trial proceedings that the will had been pre-drafted by one of the notaries and only slightly amended by the addition of words on the instrument during a discussion with the testator. The heirs thus argued that the will had not been dictated by the testator. It was only a matter of form. The Court of Appeal found that the testament was not a will recorded in a public officer deed and applied Articles 4 and 5 of the Annex of the Convention providing a uniform law on the form of an international will (1973), hereafter the Convention. The Convention requires the will to be signed or acknowledged by the testator in the presence of two witnesses. No witness has been involved in the signature process in this case. The Court of Appeal has however also applied Article V of the Convention. This article provides that conditions that are required to act as a witness are determined by internal law. The appeal judges have decided that a will signed in the presence of two notaries is equivalent to a will written by a notary and signed in the presence of two witnesses. The Cour de cassation approved the decision of the Court of Appeal. The supreme court has used the Convention to apply French law in order to achieve a result that could not be reached under French internal law itself. It appears that the reasoning of a judge largely depends on the perception that he has of his domestic law.

Let us now see how the international climate has influenced the reasoning in this case.

1.2 The international climate

It is worth noting that there already is a precedent decided in 2014 by the Cour de cassation that has held that a will was valid despite a dictation issue.⁴ The will was then recorded in a public officer deed and approved by the testator in the presence of two witnesses. The claimant argued that the witnesses had not witnessed the dictation itself. The supreme court then decided that since every requirement set out by the Convention had been met, the will was not valid as a testament recorded in a public officer deed but could however have effect following the Convention. The case that has been decided in 2018 is different since there was no witness. Requirements determined by the Convention were thus not met before the supreme court decided that two notaries could be treated as two witnesses for the purpose of the application of the Convention. This solution is not obvious at all. The Convention distinguishes between the capacity of the "authorised person to act in connection with an international will"⁵ and the capacity to act as a witness⁶. Notaries under French provisions regarding successions are considered as public officers and not as witnesses. Any practitioner knows that when he performs tasks related to his professional duties with a colleague who does some paperwork, his professional liability is exposed even if he does not hold the pen. The logic behind the solution may therefore seem strange. One can however see that the Convention is used to introduce flexibility in French law.

It has been seen that judges do not apply international law without considering it from a domestic perspective. It seems that judges will not introduce flexibility to rescue a will that has not grown well.

2 The growth of a will

When a judge decides whether to rescue a will, he has a vague sense of the testator's freedom (2.1) and follows a sharp global trend (2.2).

2.1 A vague sense of freedom

The fact that a judge has a vague sense of testamentary freedom does not mean that he overlooks it. He feels it rather it than establishes it. He cares more about facts then about logic. The Cour de cassation carefully twisted legal logic to draw an analogy between a notary and a witness. It certainly has required tact and is not a usual reasoning for a French lawyer since French law does not rely as much on analogy as English law, for example. Furthermore, the Cour de cassation judges the application of law without debating about facts that have no effect on the legal reasoning. It has earlier been seen on this blog that Brown J. had also twisted legal logic in Re Nichol⁷ by deciding that a lack of formality proved that the deceased wanted his will to be valid notwithstanding any formal requirement⁸. His twist was skilful and seemed natural because the judge went on stating facts that supported his analysis. Both supreme courts have examined facts to make sure that the will was the result of conscientious use of testamentary freedom. When the intentions are clear, judges can rescue the will that may otherwise be declared invalid.

Let us now see that this approach follows a sharp global trend.

2.2 A sharp global trend

One reaches results in a manner that respects one's culture. French legal manners are different to Anglo-Saxon ones. Hence, there are persistent differences regarding the validity of a testament by SMS. Nevertheless, conceptions of testamentary freedom in jurisdictions that apply forced heirship and in common law countries tend to converge.⁹ It thus really matters to look at successions beyond formalities.¹⁰

It appears that judges tend to favour respect owed to the testator's intentions over the easy application of formal requirements.

In brief, judges can rely on the Convention providing a uniform law on the form of an international will to ease formal constraints imposed by domestic law and, by doing so, they follow a global trend that preserves the effect of the testator's intention despite formal weaknesses.

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