Testament by SMS

Fri 05 October 2018, Philippe Ropenga Will drafting

The facts in Re Nichol have been discussed by many authors and cannot be compared to the French case analysed below since the French judge had to answer a question of principle about the constitutionality of a formal requirement regarding testaments. Facts of the French case therefore are irrelevant to the decision. In the Australian one, a man has written an SMS that contained the expression 'My will', did not send it, and committed suicide¹. His phone was found with him. In the French case, the deceased sent the text message to his sister before taking his own life. These similar matters were considered under a very different perspective by the two judgements (1). These differences are sensible to the lawyer who pays attention to cultural differences (2).

1. Two judgements

Let us examine the Australian case (1.1) before the French one (1.2).

1.1 The Australian case

The starting point of the comparison should be the absence of strict formal requirement. The form of a message does not affect its testamentary nature.² Brown J. raises a very interesting point regarding the intention of the testator. The testator does not have to focus on formalities but has to make clear that he wants the document to operate as a will.³ It is interesting to note that Brown J. infers from the absence of formal drafting that the deceased intended the SMS to operate as a will without any other formal requirement. The fact the this SMS is a draft does not mean that the deceased did not want it to operate as a will but that he did not want the recipient of the text to prevent him from committing suicide.⁴. Once Brown J. skilfully managed to turn an absence of formal evidence into an evidence that proved that formalities were unnecessary, he went on stating facts that showed that the SMS reflected the intention of the deceased.⁵ Further analysis of the facts is irrelevant in the context of a comparison to a case that only has to answer a question of principle.

Let us therefore turn to the French case.

1.2 The French case

A party argued that the deceased had made a valid testament by SMS⁶. French law knows only three major types of will. The Legifrance translation of article 969 of the French civil code available on legifrance.gouv.fr, reads as follows: "A testament may be olographic, or made by a public instrument, or in mystic form." The SMS is not written by a notary in a public officer deed nor secret. Hence, article 970 of the French civil code regarding the olographic testament applies here. Its English translation provided by Legifrance provides that: "An olographic testament is not valid unless it is entirely written, dated and signed by the hand of the testator: it is subject to no other form." An SMS is not hand-written. This article excludes the will by SMS from further consideration by the judge. The party who wishes to rely on it as on a valid will has to set article 970 aside by challenging its constitutionality. The Constitutional Council deals with constitutional issues among other matters. It can act as a supreme court when the constitutionality of a given piece of legislation is challenged. According to article 61-1 of the French constitution, two French supreme courts, the Conseil d'État and the Cour de cassation can decide whether to refer a question about the constitutionality of a piece of legislation to the Constitutional Council. The judge of the Metz tribunal of first instance had to decide whether to refer the question regarding the constitutionality of article 970 of the French civil code to the Cour de cassation that is the supreme court that deals with civil, commercial, and criminal cases. Article 23-2 of the French constitution in the English translation provided by the Constitutional Council available on its website⁷ provides that:

"The Court shall rule without delay, giving reasons for its ruling, as to the transmission to the Conseil d’État or the Court of Cassation of the application for a priority preliminary ruling on the issue of constitutionality. Such transmission shall require that the following conditions be met: 1° The challenged provision is applicable to the litigation or proceedings underway, or is the grounds for said proceedings; 2° Said provision has not previously been found to be constitutional in the holding of a decision of the Constitutional Council, except in the event of a change of circumstances. 3° The matter is of a serious nature. In all events, the court involved must, when confronted firstly with arguments challenging the conformity of a statutory provision with the rights and freedoms guaranteed by the Constitution and secondly with the international commitments entered into by France, rule in priority on the matter of the transmission of the application for a priority preliminary ruling on the issue of constitutionality to the Conseil d’État or Court of Cassation. The decision to transmit the application shall be sent to the Conseil d’État or the Court of Cassation within eight days of the handing down of said decision, together with the submissions of the parties. Refusal to transmit the application may only be challenged upon appeal against the decision settling all or part of the litigation involved."

The serious nature of the application is at stake in this case. Hence, one has to consider the reasoning of the party who challenges the constitutionality of this provision. The applicant claims that article 970 impedes the testator from making an electronic will and thus deprives him of his right to dispose of his property in the most absolute manner that is part of the right to property. She reminds the tribunal of the absolute nature of the right to property guaranteed by articles 2 and 17 of the Declaration of Human and Civic Rights of 26 August 1789⁸ that has constitutional value according to the Constitutional Council. The applicant highlights the fact that on 13 March 2000, French law has been changed to take IT into account and to recognise electronic means of proof.⁹ The applicant sees a contradiction between the liberality of evidence and the formal requirements imposed by article 970. She argues that this contradiction is caused by the lack of evolution of this article. The respondents who are opposed to the transmission of the application argue that it is not serious since the legislator enacted these formal requirements to protect the testator; this protection is not unconstitutional.

The judge first notes that article 970 of the French civil code requires the testator only to write the testament by hand and to sign below it; the medium itself is not important. Furthermore, the judge insists on the testator's mind. Handwriting helps to assert freedom of mind, the conscience of what the testator is doing, and makes clear that the testator wants the document to operate as his will. Handwriting protects the testator. Hence, the applicant confuses formalities regarding evidence and formalities regarding validity. Formalities required by article 970 protect the testator. The application is not of serious nature and thus dismissed.

These cases are very different but not for the reasons one may think of first. It therefore is interesting to compare the civilian culture with that of common law and Equity.

2. Two cultures

Writing is an important part of will drafting. Legal culture tells us how it matters in practice (2.1). Intestacy also has a probably less obvious but nonetheless crucial effect on will drafting (2.2).

2.1 The importance of writing

At first glance, the French decision seems totally different from the Australian one since it obliges the testator who does not seek the assistance of a notary to write his will by hand. Moreover, one may certainly object that handwriting does not help to determine whether the testament has been falsified because technology nowadays makes alteration of documents easier. It is true, and alteration of documents also explains why article 970 that dates back to the first edition of the French civil code favours testaments written by notaries who are public officers. It is amazing to realise to what extend the perception of well-known concepts may change over time. The code of 1804 favoured freedom over protection. Let us read article 970 of the French civil code in English or in French¹⁰ once again:

An olographic testament is not valid unless it is entirely written, dated and signed by the hand of the testator: it is subject to no other form.

It is worth noting the codon. A contemporary lawyer who mainly is interested in formalities, compliance, and protection of a vulnerable client may focus on the first clause while the second one is just as important: it means that the testator is free. If he wishes to, he can write a new testament on his own, without the assistance of a notary, and this testament will prevail over the previous one, even if it has been written by a notary in a public officer deed. Furthermore, it has been seen in the previous post¹¹ that a party can always prove unsoundness of mind to have a sale of real property annulled. This is true even if the sale, as any act related to immovable property rights, has been written by the notary in a public officer deed, and even if every requirement regarding incapacity has been met. A testament written in a public officer deed protects the integrity of the instrumentum. Nevertheless, a trust and estate practitioner knows well that when litigation starts, the most difficult is to determine whether the document reflects the free, consistent, and performative intention of the testator. Declaring an intention is one thing; expressing a wish to have something done with the assets after death is another. A notary may certainly be of help when it comes to formalities. He can also assist people in expressing their wishes. Nevertheless, the principle that restricts formalities allows to write a testament in front of a notary before writing a new one the day after, without any assistance at home. It may be discovered a few days after its author's death by one of his relatives tidying the deceased's house. It is likely to prevail over the deed written by a notary or, as it often happens, by the testator in front of him because it bears a later date. It also has been seen in a previous post¹² that standardisation of formalities in the EU does not help to solve the issues related to intention that have been mentioned above. Furthermore, the comparison of the Australian and French cases allows to understand that issues faced by those who practice in these countries are of a similar nature.

Writing, will drafting and estate planning in general are influenced by the concept of intestacy to a large extent.

2.2 The meanings of intestacy

The French civil code is influenced by forced heirship. Many posts have been written here about forced heirship in an international context.¹³ it is important in the context of will drafting since the French civil code determines the main rules regarding estate devolution when there are forced hers within the family. Hence, many French practitioners and especially notaries are used to write wills that in fact mention only the distribution of assets without describing the intention of the testator. This can cause difficulties in an international context. Common law countries have been afraid of intestacy and still pay a lot more attention to intention than civil law countries. The fact that the requirement of handwriting restricts the burden off formalities certainly may seem amazing to a practitioner educated in a common-law system during the 20th century. One should remember that English law of trusts and estates is based on common law but also on Equity and that these two doctrines have had a very different approach on what was a burden and how to take evidence into account. Equity has often been seen as the highly technical part of English law that has been heavily criticised by Charles Dickens in Bleak House. Trusts and Equity however are fascinating. The intention of the settlor indeed is taken into account while the interest of the beneficiary is preserved. It makes them truly unique¹³, and only Anglo-Saxon academics debate fusing Equity and common law. Similarly, the requirement of handwriting probably is part of the French cultural background and is not a serious obstacle to testamentary freedom.

It has been seen that writing was an important part of succession law because of formalities. Will drafting largely is a cultural phenomenon that cannot be understood from a purely rational perspective.

In brief, the comparison of Re Nichol to a recent French case shows that legal drafting in an international context requires the practitioner to step back from his own tradition to minimise issues regarding the understanding of a will by a foreign jurisdiction.

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