Challenging a will
You are an heir in an inheritance and discover the existence of a will. You want to contest it, but you don’t know how? You are at the right place.
It is frequent that, after the death of a loved one, some heirs feel aggrieved when they discover the existence of a will that excludes them in whole or in part from the inheritance.
First of all, what is a will ?
A will allows a person, during their lifetime, to organize their inheritance. It is not mandatory to make a will, and if a person dies without having done so, the legal devolution system will apply. (If you are interested in this subject, you can also view the article “Civil Code and wills”)
There are different types of wills, and depending on their form, it will be more or less difficult to contest them.
The different types of will :
The first type of will is the holographic will. It is the most commonly used form of will in France. The reason? It is the simplest and least expensive form of will to implement. To be valid, this will must be written, dated and signed by the testator. The medium does not matter (paper, wood, wall, etc.). For example, a testator can even write their last wishes on a post-it note, under certain conditions provided by the Civil Code. Obviously, such easy access necessarily rhymes with a higher probability of contestation.
The second type of will is the authentic will. This is surely the most protective form of will for the testator. Indeed, this will is drawn up before two notaries or a notary assisted by two witnesses, which guarantees the exact transcription of the will of the deceased and a drafting in conformity with the provisions of the Civil Code. Moreover, this will is automatically registered by the notary in the Fichier Central des Dispositions des Dernières Volontés. All of these advantages come at a cost of approximately 170€, but this greatly reduces any risk of loss, damage or possible contestation.
Finally, there is the mystical will, which is very rarely used in practice. It consists in the writing, by the sole testator, of their closed, sealed will, which they will then give to a notary. The secret will is kept by the notary and registered in the Fichier Central des Dispositions des Dernières Volontés. The content of this will is only revealed at the death of the deceased.
Thus, some wills are more easily contestable than others. The contestations concern both the form and the content of the will.
Disputes concerning the form of the will :
Regarding the conditions of form, only holographic and sealed wills are concerned, since the drafting of a document by the testator alone greatly increases the risk of error and interpretation of their last wishes.
Indeed, the drafting of a will must comply with a certain number of formal requirements, as set out in articles 970 and following of the Civil Code.
A will is null and void if it is not written in full, dated and signed by the testator.
Although these conditions of form are apparently obvious, many wills have been rejected for these reasons.
In this respect, case law has always rejected the application of typed wills, even if the testator had signed and initialed it with their own hand.
The same applies to the signature, which must necessarily appear at the very end of the document, which prohibits the practice of “PS” at the end of the letter.
As soon as a will does not comply with the formalities provided for by the Civil Code, it may be declared null and void and not taken into account in the settlement of the inheritance.
On the other hand, as you will have understood, contesting an authentic will on this basis appears to be more difficult insofar as the formalism has been precisely checked by one, or even several, notaries who received the will. If it cannot be contested on the form, it can be contested on the substance.
Disputes concerning the content of the will :
The vast majority of will disputes relate to the content of the deed itself.
Indeed, it is not possible within the framework of a will, and whatever its form, to do whatever one wants with one’s patrimony.
The most revealing example is the impossibility for a parent in France to disinherit their children by will, as this would infringe on the children’s reserved portion of the estate.
The content of the will thus meets imperative rules, provided by the Civil Code.
The first is found in article 901 of the Civil Code, which provides that “To make a donation, one must be of sound mind. A donation is null when consent has been vitiated by error, fraud or violence”.
The majority of disputes concern this point, since it is common for people of a certain age, or whose state of health has deteriorated considerably, to draw up their last will and testament without having the capacity to do so.
In such cases, it is necessary to prove that the deceased’s mental faculties were impaired at the time of drafting the will, so that the last entries do not reflect the reality of the deceased’s wishes as regards succession.
In addition, when a will is drafted in an ambiguous manner, both as to the provisions and the beneficiary of the legacy, it is possible to challenge it.
One of the main risks for the testator is not having been precise and clear enough about their last wishes. Thus, if there is any doubt about the interpretation of the testamentary provisions, the judge may set aside the will on the grounds that the document does not reveal the true intention of the testator to bequeath.
Also, the beneficiary must be expressly mentioned and clearly identified in the will, unless there is a risk of interpretation. For example, the simple statement “I bequeath to my best friend…” does not identify the beneficiary of the bequest, as the deceased may have had several very close friends.
On the other hand, the statement “I bequeath to my children” is accepted as long as the children are clearly identifiable. However, this global mention is not recommended because there may be a hidden child, who may later assert his or her rights in the context of the inheritance. Finally, the Civil Code requires the writer of the will to choose precisely the beneficiaries of his inheritance. A testator cannot therefore entrust the mission, in their will, to a person (or even their notary) to choose for them who should inherit what. Since the will must reveal the clear and unequivocal will of its author, such an imprecise provision will allow the heirs to contest the will.
Finally, it is possible to contest a will by presenting a later will, hence the preeminent interest of the date. Obviously, this new will must meet all the conditions of form and substance mentioned above in order to be applied in the inheritance and to replace the previous will.
Time limit and procedure for contesting a will :
The heirs have a period of 5 years to bring an action for the nullity of the will, starting from the death of the testator or from the day they became aware of the act.
Obviously, a challenge is only possible after the death of the deceased. Even if the heirs discover a will before that date, it is not possible to contest a will during the testator’s lifetime because they have the possibility of changing it at any time.
In order to do so, it is necessary to refer the matter to the Judicial Court, which has exclusive jurisdiction in matters of Inheritance.
In addition, it is mandatory to be represented by a lawyer in order to bring the case before the Court.
In conclusion, the discovery of a will during an inheritance is very often a source of litigation. If you feel that you have been wronged by a will of a deceased person, you are strongly advised to seek the help of a lawyer who will be able to assist you in this complex procedural process.
Our lawyers are at your disposal to answer all your questions and to advise you. Our meetings can be held in person or by videoconference. You can make an appointment directly online at www.agn-avocats.com.
AGN AVOCATS – Inheritance Department
09 72 34 24 72
Article written with the participation of Mr. Jérôme BAZELOT, student lawyer at the Ecole des Avocats du Grand Ouest. The lawyers of the Inheritance Department of AGN AVOCATS thank him for his contribution.