The distinction between disability and incapacity

Thu 25 April 2019, Philippe Ropenga Incapacity

Some cases may seem too obvious to deserve a blog post. This one could be summed up in one line. You probably prefer to understand French lawyers, just in case you come across a case involving incapacity in French law. Let us therefore see how facts are considered in trust and estate matters (1). Facts are used to prove that applying a protection regime does not interfere with the intention of a vulnerable person (2).

1 Facts in trust and estate matters

One has to know the statutory background (1.1) to understand how the Cour de cassation examines facts (1.2)

1.1 French law regarding curatorship

Unlike a person under tutorship¹, a person under curatorship can act, but the curator has to approve certain acts, i.a., by countersigning contracts signed by the incapacitated person.². The curatorship varies according to the condition of the protected person. According to article 572 of the French civil code, the curator is given the powers of a tutor to look after the pecuniary interests of the incapacitated person when the judge decides that "strengthened curatorship"³ is suitable. The Cour de Cassation, i.e., the supreme court that deals with civil, commercial, and criminal cases, has decided a case⁴ by reminding the public that disability did not mean incapacity. The Court has relied on articles 425 and 440 of the French civil code, i.e., on general provisions regarding incapacity.

Article 425 provides that :

Any person for whom it is impossible alone to pursue his interests because of an alteration, medically established, either of his mental abilities or of his bodily abilities of such a nature as to prevent the expression of his will, may benefit from a measure of legal protection referred to in the present chapter.

If not otherwise stated, the measure is aimed at the protection both of the person and of the patrimonial interests of the latter. The measure may nevertheless be limited to one of these two missions.

Since the protected person is not mentally impaired in this case, the most important part of the provision is the following one: "his bodily abilities of such a nature as to prevent the expression of his will".

The Cour de cassation also applied article 440 of the French civil code. This provision reads as follows:

The person who, without being unable to act himself, is in need, for one of the causes mentioned in Article 425, to be assisted or supervised in a continual manner in the important acts of his civil life may be placed under curatorship.

Curatorship is ordered only if it is shown that judicial protection cannot assure sufficient protection.

The person who, for one of the causes mentioned in Article 425, must be represented in a continual manner in the acts of civil life, may be placed under tutorship.

Tutorship is declared only if it is shown that neither judicial protective supervision nor curatorship can guarantee a sufficient protection.

One can see that there is a graduation in the application of protection regimes. Strengthened curatorship should only be applied when simple curatorship is not sufficient. The Court de cassation has decided in this case that the Court of Appeal had not discussed the effect of disability on the expression of the protected person's will. The outcome seems obvious. This case highlights an aspect of cassation proceedings that is often underestimated by lawyers who have only been educated in a common law jurisdiction.

1.2 Facts in cassation proceedings

The Cour de cassation controls the application of the law by lower courts. If one wants an appeal case to be quashed, one has to show that law has been wrongly applied in his case. This cassation procedure does not apply to administrative law. Administrative law is applied by administrative appeal courts. The supreme court of the administrative order is the Conseil d'État. The Cour de cassation has decided in this case that the decision of the Court of Appeal lacked of legal basis. It does mean that the Cour de cassation wished to look at the facts to decide whether the impossibility to express a will because of a bodily disability has been well established. The supreme court has found in this case that facts were unclear or that they have not been properly used to reach the outcome. It has already been seen in a previous post⁵ that quashing for lack of legal basis was a mean for the Cour de cassation to judge the use and interpretation of facts by lower courts notwithstanding the fact that this supreme court does not reexmine pieces of evidence. This case invites French lawyers to put more effort in establishing facts that support the necessity of a protection regime by carefully using evidence.

It has been seen that the Cour de cassation paid a great attention to facts in the context of incapacity. Let us see that this trend tends to favour intention.

2 Intention above all

The growing attention to intention is noticeable beyond incapacity matters (2.1) and beyond borders (2.2).

2.1 Beyond incapacity

This trend aims at protecting the vulnerable person. A similar phenomenon happens in other areas of trusts and estates such as succession law. Will drafting requires the drafter to pay a great attention to intention.⁶ One indeed has to make clear that he wishes a deed to operate as his will. Intention is also a delicate matter in inter vivos gifts since a sign of generosity may sometimes exceed the donor's intention and create a natural obligation to support the donee.⁷ Furthermore, consumers are seen by consumer law as weak parties that require protection. Their protection does not rely as much on intention as in trust and estate matters. As one can see from the EU New Deal for Consumers, EU consumer policy deals rather with an unfairness that prevents the Single Market from being fluid than with an intention that should be respected.⁸ Hence, one can conclude that this great attention to intention has an effect on issues related to trusts and estates.

Let us recall that intention globally attracts a greater attention.

2.2 Beyond borders

There are differences regarding the perceptions of formalities between French and common law jurisdictions. Favouring intention does not mean favouring freedom. It has been seen that English and French laws limit testamentary freedom and that these restrictions were converging despite very different cultural backgrounds.⁹ Putting the spotlight on intention does not mean that effects of intention are unrestricted; it means that the outcome of court proceedings or legal issues largely depend on the manner in which intention is considered in a given matter. One may object that a testament by SMS is not valid under French law. This is true. Allowing handwritten wills was a way to reduce the burden of formalities.¹⁰ Furthermore, it has been seen that the Cour de cassation has applied the Convention providing a uniform law on the form of an international will (1973) to decide that a will was valid despite a formal irregularity that could not be overcome by applying only French domestic law.¹¹ The spotlight on intention allows to see that courts follow a legal trend and that the outcome of a matter depends on their cultural background.

Intention attracts more and more attention from courts in France and in common law jurisdictions. This trend is noticeable in incapacity matters and broadly affects trust and estate matters.

In brief, the French Cour de casation has reminded the trust and estate practitioners that disability did not mean incapacity. The latter occurs when a person is unable to express his intention.

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