You know from this blog that I pay a great attention to mental capacity1 and to will drafting2. One post also deals with family trees.3 Trees and garden may be a source of thorny issues in a succession context. These issues tend to be more complex to solve in a cross-border dispute. The facts of a recent case4 can be summarised as follows:
A lady has written four successive testaments. This post will only deal with the dispute between two legatees. The first testament dated 16 August 2006 by which the deceased appointed a man as sole legatee. Finally, the deceased has written a fourth will dated 15 October 2009 by which she has given everything to a lady and has revoked previous testaments. The gift included a forest. The woman legatee took legally possession of the gift on 31 August 2011. The man legatee learned on 22 September 2011 what was written in the last will and took legal action to challenge its validity on 9 February 2012. The validity matter left aside, its worth noting that the woman legatee ceased maintaining the forest and undisputed damage occurred. The claim regarding the validity of the will succeeded and the Court of Appeal awarded the man legatee a lump sum and found that he went in aggravation of damage by bringing his claim late.
The French Cour de cassation that is the French supreme court that deals with civil, commercial, and criminal matters had to decide wether such a lump sum could be awarded in equity. The cassation judges have unsurprisingly decided that the Court of Appeal should have followed a standard liability test and should have awarded damages accordingly. This seems obvious but can be problematic. The legatee man has asked a bailiff5 to describe what could be seen at the estate. The practical issue is that such a professional witness cannot give an expert opinion regarding a tree's health. The Cour de cassation does not examine evidence as a matter of fact but judges application of the law by a lower court.6 How can one estimate damages made to a living thing? It is therefore good practice to ask an expert to examine trees periodically to determine when a damage has occurred. A bailiff can attend the examination to ascertain that he has seen the same thing as the expert.
Furthermore, the supreme court has found that the legatee man had not brought his claim late and quashed the case.
In brief, tree maintenance can make a big difference in a legal dispute involving real estate.
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See previous posts in the Incapacity category. ↩
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See previous posts in the Will drafting category. ↩
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C. Cass., Civ. I, 3 November 2021, 20-10.445. ↩
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Huissiers de justice often known as bailiffs in English are sworn enforcement officers who can act as "professional witnesses". ↩
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See esp. The distinction between disability and incapacity at 1.2. ↩