The Cour de cassation just rendered a significant decision concerning the validity of wills under French law (hereinafter “The Language of the Will case“). This decision is of great importance for the estate planing of foreigners living in France.
A few months only after settling in France, a German citizen, who did not speak, nor understand, French, drafted a will, mostly to the benefit of his sister. This will was annulled by the highest French judicial authority, the Cour de cassation. The reason for the annulment is that the will was drafted in a language that the testator did not understand: French. It is quite remarkable to have a deed annuled in France for the sole reason that it was written… in French. This case obviously raised my attention and I just had to analyse it! It is also a good opportunity to review what conditions must be met for a private will to be valid under French law.
1. The different types of will under French law
There are basically three different kinds of will under French law:
- Le testament authentique: a formal deed, established before two notaries, or a notary alone and two witnesses, which is therefore very secure from a validity standpoint;
- Le testament olographe: the holographic will, a less formalistic deed, which “simply” needs to be written, dated and signed by the testator; and
- Le testament mystique: a will, usually drafted privately, which content is to be kept secret by a notary until the moment of succession.
Each formula has its strengths and weaknesses. The testament authentique is obviously the most secure way to establish a will. Ineed, notaries are well versed in estate planning and know the constraints and conditions of validity imposed by the law. As legal professionals and public officers, they guarantee the validity of their deeds. However, some elderly chose to avoid having recourse to a notary, because their intervention can be seen as costly. They then opt for the testament olographe, which is seen as the easy option, but nonetheless presents some risks. The testament mystique is less common and used in specific circumstances, where confidentiality matters most.
2. The “Language of the Will” decision of the Cour de Cassation (9 June 2021, 19-21.770)
On the 9th of June, the Cour de cassation rendered a very interesting decision, whereby a holographic will was annuled on the sole basis of the language – French ! – in which it was written.
2.1. The facts of the case
The facts of the case were as follows: a German citizen, residing in France since 1999, had drawn up a holographic will in 2002, in French, whereby his sister was instituted as legatee of the available portion of the estate. She was further appointed as estate executor in a separate German typewritten translation of the will. Following the death of the legator in 2003, his sister summoned the other legatees (the testator’s 3 children) to proceed to the distribution of the estate. The children contested the validity of the will, obliging the executor to seek judicial resolution. They raised the argument that, because their father did not speak, nor understand, French, the will could not validly express his last wishes.
2.2. The ruling of Chambéry’s Court of Appeal: a plain interpretation of the hand-writting requirement
Seized of the matter, the Court of appeal adopted a rather simple interpretation of article 970 of the Code civil, which only demands that a testament olograph be written fully (“écrit en entier”), dated (“daté”), and signed (“et signé”) by hand by the testator himself (“de la main du testateur”). The final part of this provision, which specifies that these form requirements are restrictively listed (“il n’est assujetti à aucune autre forme”) may have encouraged the appeal judges to confine thesemselves to a basic check of the will. Was it fully handwritten by the testator? Yes. Was it dated and signed by him? Yes. Are the provisions of the will licit? Yes. Hence, the will is valid en enforceable.
Naturally, the second judges were aware of the issue that the de cujus did not speak French. However, they noticed that a typewritten German translation, sufficient in their mind to make the testator understand what he was writting, had been given to him. They concluded that the translation did not contradict the deed, but only contained very minor discrempancies, such that the intent of the testator could not be deemed altered.
2.3. The cassation of the appellate decision: defending the rationale of wills
The children appealed for an overruling of this decision before the Cour de cassation (the highest judicial authority of the Land for civil cases). They did so by raising a very good argument.
According to them, the Court of appeal was in error in reckognising the will as valid, in that it did not take into account the rationale for the handwriting requirement of holographic wills: to ensure that wills reflect the genuine intent of their drafter as to the succession.
Main appellate argument
In-other-words, the handwritting requirement is not to be construed as merely formal, but as intrinsically linked with the essence of wills, which is to express a free and informed intent. How could one express his/her intent in a language that he/she does not even understand? How could such expression of intent not be automatically viciated?
The Cour de cassation ruled (in its usual rather lapidary fashion) that, since the testator had written the holographic will in a language he did not understand, this document could not be construed as the expression of his last wishes.
This way of solving such an interesting dispute with a few words only will certainly excruciate the – slightly geeky / blury glass style- lawyer with a passion for case law. As you can tell, yours truly even had troubles sleeping… It can also surprise readers used to Common law rulings, where judges give their opinion extensively, or even take the burden to explain the alternative circumstances under which the annuled deed could have been valid. This sharp contrast lies in the different roles that France and Common law countries grant the judiciary. In any case, here we are: it is now up to us to speculate on how the contested will could have been valid. Most importantly, what lessons can we learn from the Language of the Will case?
3. Lessons learnt from the Language of the Will case
The decision of the Cour de cassation is one of numerous precedents demonstrating that legal documents drafted in a foreign language can be accomodated into the French legal system. Our Courts can indeed reckognise the full effects of documents orignially drafted in a foreign language. Despite its brevity, at least two practical teachings can be derived from the Language of the Will case.
3.1. Language of the will; translation of the will
Following the logic of the Cour de cassation, we could deduce that the testator should simply have written his holographic will in German. Effectively, it follows from the annulment of the French-drafted will that a German-drafted one would have done the job.
However, I would argue that expats cannot simply satisfiy themselves with a general “draft your holographic will in your own language” teaching. It could not entirely solve the problem. One must remember that, under the infamous Ordonnance Villers-Cotterêts of 1539 (the oldest piece of legislation still in force), only French-written documents are admissible before French courts (with the exception of specific international chambers). This means that an official translation would be needed anyways, should the matter be settled in Court.
Bearing the commented decision in mind, it could be wiser for expats to draft, date and sign by hand both a will in their native language, and a French translation of it.
3.2. Transnational holographic wills may not be that simple
As you certainly realised by now, international estate planing is pretty sophisticated. It may very well be the case that, in the Language of the Will case, our German expat actually did intend to grant all the available rights to his sister. Who knows? In the end, the annulment of his holographic will could actually constitue a definitive obstacle to the fulfilment of his final wishes… in the name of defending them!
Ultimately, our “slightly geeky lawyer” has a point: law is indeed fascinating! But beyond a passion for the law, the message that this article intends to convey is that estate planing for expats requires delicate advisory services.
Complex situations demand careful consideration.
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