Will drafting in context

Fri 04 June 2021, Philippe Ropenga Will drafting Incapacity

It has been recently looked at testamentary freedom from a quantitative perspective by addressing the question "How much can I take back after death?"¹. Other posts have dealt with drafting formalities². This time, I would like to examine testamentary freedom from a different perspective, that of the context of the deed. A recent case decided by the French Cour de cassation, ie the supreme court that deals with civil, commercial, and criminal matters, shows how context matters in a case involving a testamentary gift. It may not attract the attention of the trust and estate practitioner who practices in a common law jurisdiction since it does not involve international provisions although the testament has been drafted by an Australian solicitor. I think that you may face a similar difficulty. There are several legal issues, I will focus on the one that is noteworthy to an international readership since its deals with legal theory rather than French black letter law. I have shared my thoughts with you about a year ago regarding incapacity. It seems that French law mitigates the sharpness of incapacity by considering the weakness of a person.³ Weakness is broader than incapacity and is not a physiological issue but a social one. The following case is in the same vein.⁴

A professional carer who was not a healthcare professional⁵ assisted a man until his death. An Australian solicitor from Southport, Queensland drafted a will on 23 August 2013 according to which the carer was to receive all the money available on three Australian bank accounts. The Court of Appeal found that the deceased has not been under any incapacity regime, that he was weak when making the gift and had some memory loss. The Court found that alteration of judgement had not been proved and dismissed the appeal. Heirs argued that the appeal judges had not answered a claim regarding consent. They brought evidence showing that the carer had impeded the deceased from seeing his relatives and that she had been introducing herself as the deceased's unregistered partner.⁶ It has already been seen here that disability differed from incapacity.⁷ French incapacity law intends to protect the vulnerable person without restricting the his freedom too much. There is however a major theoretical different between the French and English approaches: the protection against wrongdoings is influenced by Equity.⁸ The Cour de cassation stated that the appeal case lacked of base légale⁹ since the appeal judges had not checked whether facts supported the heirs' view. They claimed that Article 901 of the French civil code about the testator's consent had been violated because the carer had acted fraudulently to receive part of the estate. The Cour de cassation followed the reasoning and quashed the case. An Anglo-Saxon practitioner may see this fraud as undue influence. The French concept of dol that has been applied in this case is also used in contract law. This should not be a surprise to you since you know you that undue influence has been applied in Allcard v Skinner¹⁰, a gift case that has been decided in Equity. The French case is interesting from a comparative perspective because it shows how two different juridictions solve a similar issue. Both courts have payed a great attention to the context of the deed. Capacity issues may also be solved by taking context into account.¹¹ Here, the context of the gift matters although the testator's capacity is not an issue. The Cour de cassation has used consent instead of capacity to broaden the scope of its control.

In brief, French courts pay attention to the factual context of the deed to examine the reality of the testator's intention.

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