Unwritten date

Wed 28 February 2024, Philippe Ropenga Will drafting

An earlier post that you still enjoy reading compares the French approach of testamentary formalities to the Australian one.¹ It has also been written that stakeholders in a succession matter sometimes focused too much on formalities.² Former posts have focused on the spatial aspect of formalities that may stop people from exercising their rights aboard, especially when issues regarding dates or names written on a foreign deed had to be solved.³. A recent French case reminds us that the perception of freedom also changes over time.

A testatrix wrote a will at the back of an original savings account statement issued by her bank. The testament mentioned her address but no date. The authenticity of her handwriting was not disputed at this stage of the procedure. The brother of the universal legatee claimed that the will was not valid due to the lack of any element in the testament referring to a date.⁴ This kind of intrinsic elements is usually analysed along with other elements known as extrinsic elements that are not written on the document to determine the date of an undated will following Article 970 of the French Civil Code.

Is a pre-printed date an intrinsic element according to Article 970 of the French civil code?

Yes, according to the French Cour de cassation that is the French supreme court that deals with civil, commercial, and criminal matters. Pease remember that it does not examine pieces of evidence but checks whether the factual analysis of a lower court matches the law.⁵ It thus examined how the Court of Appeal had used extrinsic elements to determine the testament date.

It has first stated that the lower judges had relied on two intrinsic elements: the pre-printed date at the back of the will was 31 March 2014 and the address written by the testatrix matched the one written on the account statement. It has then noted that the Court of Appeal had relied on one extrinsic element: the testatrix stayed in hospital from 27 May 2014 until her death. It has finally approved the appeal judges who decided that the testament had been written between these two dates and that there was no evidence of any later will.

This case contrasts with those dealing with the EU Succession regulation not only because of its domestic nature but also because of this nineteenth-century spirit that shines through it. These old provisions were once seen as innovative because they enabled people to give easily effect to their intention. Nowadays people often complain about the European Union and urge it to make the world safer through regulations…

In brief, a testament date is not only a matter of formalities.

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