The different types of wills
In order to plan one’s inheritance in the best possible way, it is possible to depart from the legal regime of devolution (see article “Civil Code and wills“) and to put one’s last wishes in writing.
For example, partners in a civil partnership (PACS), who, according to the law, do not inherit from each other, can plan to leave part of their respective assets to each other upon their death.
Or, it is possible to benefit one of one’s heirs, or a person who is not considered by law as an heir (a daughter-in-law, a nephew, or an association to support a good cause…).
It is also possible to use one’s last wishes to partially disinherit an heir by bequeathing a portion to someone else (see article “Inheritance and disinheritance”). However, in the latter case, the reserved portion must always be taken into account when it is a child of the testator. It is not possible to disinherit a child completely. He or she can always claim a minimum share of the inheritance by means of a “request for reduction”.
It is also possible to express in writing simple wishes or various provisions, such as a clause regulating his funeral, an acknowledgement of a natural child…
The will is then an ideal instrument to plan your inheritance.
The will is defined as a solemn act of final wishes, voidable until the death of its author (the testator), by which a person determines for the time when their will no longer exist, in one of the written forms determined by the law, the manner in which their property will be distributed after their death, in favor of one or several persons (article 895 of the civil code).
There are 4 types of will ( I ). Although each type of will has its own specificities, certain rules of form are common to all wills (II).
Rules of form common to all wills
1. Necessity of a writing
The validity of a will is subject to the condition that it is in writing. A purely verbal will (nuncupative will), even if it is made before witnesses or dictated on a tape recorder, is void.
2. Necessity of a single testator
A will is a unilateral act that must be personal to its author. A joint will, i.e. one drawn up by several persons (two spouses, for example), is void. This prohibition is justified by the concern to preserve the freedom to test and to ensure the possibility to revoke testamentary dispositions.
3. Sanctions for failure to observe the rules of form
Failure to observe the form requirements is sanctioned by the nullity of the will. This sanction concerns not only breaches of the rules of form common to all wills, but also failure to observe the rules of form specific to each category of will.
The action for nullity may be brought by the person who is supposed to receive the bequeathed property in the place of the legatee (in practice, the heirs or the universal legatee). The limitation period for the action is five years from the date of death or from the day on which the person concerned became aware of the existence of the defective will.
Types of wills
A. Holographic wills
To be valid, it must meet the three following conditions (article 970 of the Civil Code):
- It must be written entirely by the hand of the person making it. It does not matter what medium it is in, but it cannot be typed.
- It must be dated. The date can be useful if there are several wills. Based on the date, it will be possible to determine later whether the testator was competent to make a will at that time. If there are several wills, it will also be easy to determine the most recent one.
- Be signed with the usual signature.
Most often, a holographic will is secret and will be discovered at the death of the testator by the family.
The holographic will is the most widely used form of will because of its many advantages: simplicity, free of charge, secrecy and ease of revocation.
However, it also has disadvantages, in particular a significant risk of loss, falsification, destruction or concealment. It should also be noted that, through clumsiness or ignorance, the testator sometimes draws up a void or ambiguous will.
An irregular will can easily be contested by other heirs who do not wish to see it applied. An irregular holographic testament will be declared void.
To limit these disadvantages, it is imperative to seek professional advice so that this type of will can produce their full effects at the death of the testator without being questioned or subject to interpretation.
Strengths : very flexible formal requirements, inexpensive, secret, solemn act
Weaknesses: easily falsified, can be destroyed, concealed, contested
B. The authentic will
The authentic will has a formalism imposed by the Civil Code (articles 971, 972 of the Civil Code).
It must be established by a notary. It should be noted that the testator must be received by two notaries or a notary assisted by two witnesses.
The testator must dictate his will, which will be drawn up by the notary. The notary is not obliged to repeat the text word for word, but must keep the meaning.
After the will has been drafted, it must be read in front of the testator to ensure that the testator’s wishes have been carried out as faithfully as possible.
Finally, the testator must sign the will in the presence of the notary and two witnesses.
The deed is kept by the notary. In return, the drafting and the conservation of this act has a cost (fixed fees of the notary and emoluments of formalities in addition).
Strong point: no risk of ambiguity, less risk of falsification or concealment
Weakness: costly; burdensome formalism
C. The mystical will
This form of will, with its mysterious name, is a combination of holographic and authentic wills. It is a form that is not widely used today.
It has the specificity of being a secret will.
This will supposes that the testator (articles 976 and following of the civil code) :
- writes the will themselves or has it written by a third party, and signs it themselves.
- then presents the will in the form of a closed, sealed deed to a notary in the presence of two witnesses, the notary will then draw up a “suscription” deed in accordance with a rather cumbersome procedure.
If these conditions are not respected, the will is void. However, it can be used as a holographic will if the conditions specific to holographic wills have been met.
It is therefore advisable to take the advice of a professional beforehand to draw up this will.
Strong point : security against the risk of falsification or concealment
Weakness: strict formalism, costly
D. The international will
The international will can be used in particular when there is a foreign element in the inheritance situation, but also in internal relations.
Like the sealed will, the international will can be drawn up by the testator personally or by a third party. The specificity here is that any language can be used.
The testator must then declare to the notary (always assisted by two witnesses) that this document is their will. The notary is therefore not required to know the content of the document.
Finally, the will must be signed and dated by the person who drafted it, the notary and the two witnesses.
Strong point : useful for all persons who cannot write or do not speak French
Weakness: cumbersome and costly formalism
In conclusion, the advantage of writing a will is to be able to organize and plan one’s inheritance in advance. However, this testimonial freedom is subject to a strong formalism, which is why the assistance of a lawyer specialized in this field is highly recommended.
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
