You know from a previous post dealing with the Australian case Re Nichol 1 that when it comes to will drafting, French law pays a great attention to writing.2 This is a major cultural element in French will drafting.3 From the perspective of the testator’s mind, will drafting has three functions:
- Asserting the testator's freedom.
- Determining whether he knows what he is doing.
- Making sure that the testator wants his words to take effect. This is not a common function in law and is essential in will drafting. Anyone knows that saying is not acting. Any law student knows the difference between entry into contract and performance. A valid will has to be executed since the testator will not be able to deal with his estate after his death.
A German national has been living in France since 1999, the year of his divorce, until his death in 2003.4 He has left three children and a will. The will has been handwritten and signed by the testator in 2002. The deed is written in detailed legal French and provides in substance that he gives the quotité disponible, i.e., the portion of the estate that is not subject to forced heirship5 to his sister as sole legatee. The will comes with a document that has been written in German that is entitled "Translation of the testament", bears the same date as the testament, is simpler in writing, refers to the portion that is not subject to forced heirship, and gives the deceased's sister powers to execute the will6 that are not mentioned in the testament. The fact that the deceased had to rely on the document in German to understand the will in French before signing it is beyond dispute since the deceased did not understand French. The Court of Appeal has found that the will was valid because it met formal requirements provided by Article 970 of the French civil code; the testament and the document in German bore the same date and the same idea. Moreover, according to the Court of Appeal, the difference between a sole legatee and someone who has powers to execute has no incidence on devolution. The French Cour de cassation that is the supreme court that deals with civil, commercial, and criminal cases had to answer a question that can be formulated like this:
Are requirements set by Article 970 of the French civil code purely formal? The supreme court has answered negatively. The said Article has been violated by the Court of Appeal since the deceased did not understand French, and therefore the will cannot express the deceased's wishes. Formalities are indeed used i.a. to protect intention. It has been seen on this blog that the French Cour de cassation used international law to rescue a will that did not meet the requirements set by French domestic law.7 The decision of the supreme court may seem obvious in this very recent case, but it may not be very easy in practice to prove, after one's death, one's language proficiency during one's lifetime.
In brief, it is better to pay a great attention to evidence of the testator's understanding of the language used to draft the will.
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Re Nichol [2017] QSC 220. ↩
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See Testament by SMS. ↩
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Previous posts on the topic can be found in the Will drafting category. ↩
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C. Cass., Civ. I, 9 June 2021, 19-21770. ↩
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Posts about forced heirship can be found in the Forced heirship category. ↩
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The case transcript uses the expression exécuteur testamentaire. This must be a French translation of a German legal term contained in the German document but not in the French will. Considering the fact that there may be significant differences between institutions from different jurisdictions despite lexical similarity, a vague expression has been used in this post. ↩