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Lawyer to contest a will
For a complete guide about how to contest a will, we invite you to read this article.
Will definition
A will, also known as a last will and testament, is a legal document that expresses an individual’s wishes regarding the distribution of their property, assets, and the care of any minor children upon their death. The person creating the will is known as the “testator” (or “testatrix” for a female), and they outline specific instructions for how their estate should be handled after their death. With a will, a testator is then free to choose their beneficiaries.
Upon the testator’s death, the beneficiaries can contest or challenge the will. Grounds for contesting a will are broad. Lack of valid execution and of testamentary capacity are considered as grounds.
The will must be executed properly to make it valid: for example, a handwritten will also called holographic will in France should not contain mistakes, stained, or ripped. If so the will can be contested.
Lack of testamentary capacity: heirs can contest a will if they think the testator didn’t have the mental ability to make a will, was not aware of the full content or there is a fraud.
Our lawyer firm is specialised in will writing and contesting a will.
- Discover Your Rights: Visit our office to understand your legal standing and explore potential grounds for challenging a will.
- Expert Guidance: Benefit from our experienced team’s insights to navigate the complexities of contesting a will and protect your interests.
- Personalised Support: We provide individualized assistance to help you make informed decisions and ensure a fair resolution for contested wills.
Lawyer to contest a will – challenging a will
Challenging a will: overview
Why contesting a will in France?
There are 2 situations to contest a will: you were expecting to inherit and didn’t or expecting to inherit more or it hasn’t been executed properly.
Only the beneficiaries can contest a will. An heir can partially contest a will or the whole.
Is lack of testamentary capacity considered as a ground?
Yes!
Lack of testamentary capacity definition:
The Supreme Court added to a French civil code article that a lack of testamentary capacity involves all types of mental issues where the testator didn’t have the mental capacity to make a will or was unaware of the content.
If a beneficiary wishes to contest a will, they will have to evidence that the testator did not have the mental capacity to make a will.
Regarding French Law, a testator can make a will only if they are of sound mind and have no physical health issues preventing them from thinking rationally.
Are fraud and undue influence considered as grounds to invalid a will?
The French civil code article 1130 defines fraud and coercion as grounds also called ‘defective consent’.
A will can be invalid for such grounds and can be challenged by a beneficiary.
For a will to be invalid these grounds must be as follows:
- Lack of knowledge:
Definition of lack of knowledge
The term indicates that the testator had the mental capacity to make a will but they were unaware of the contents. There is a failure on the part of the testator making the will.
The term also indicates that the testator was misleading between the reality and their belief. A typical clerical error can be related to the beneficiary’s name.
- Forgery or fraud called “Dol” in French
Forgery and fraud definition
The term indicates that a will has been forged or fraud has been used.
In France there are 2 types of forgery:
- Undue duress:
The term indicates that the testator has been forced to include a name also called emotional manipulation.
- Gaslighting:
The term refers to a form of psychological abuse where false information is presented to the testator. In that case gaslighting refers to the process of removing heirs from the will.
- Undue influence:
Undue influence definition
Undue influence is a term used to describe someone being pressured or coerced into making a will or including specific terms.
Actions could include: Emotional manipulation, Coercion, Physical abuse, blackmail, verbal bullying,
Most of the time people are vulnerable and are old, alone, sick and psychological weak.
Criminal sanctions are required for such behaviours.
Can a will be contested if false information is used?
Yes!
An heir can contest a will if false information is used even if the will has been drafted by a Notary.
Example of false information:
Johny’s children discover the existence of a will at his death.
They find out that some terms and vocabulary are used that the testator never used before.
The will is contested by evidencing the terms and vocabulary used by the testator. If there are enough evidence, the claim will proceed to court for invalidity.
Example of double portion:
Johny’s children discover the existence of a will at his death.
During the reading of the will by the Notary, they point out that the testator gave an asset twice, once before his death and again in the will.
Heirs contest the will and the claim will proceed to court for invalidity.
Is there a time limit to contest a will in France?
Yes!
To contest the validity of a will, there is a 5-year time limit to do it upon the testator’s death.
However, if a beneficiary or an heir wasn’t aware of the testator’s death and of the will contents, there is also a 5-year time limit to contest it upon the knowledge of the existence of the will.
Lawyer to contest a will – challenging a will
Contesting a handwritten will (holographic)
What is a holographic will?
This type of will is often used.
To be valid, the will should be:
- Handwritten
- Dated and signed.
- Each page must be numbered and signed.
How to contest a holographic will?
In France, a holographic will can be contested based on procedural and substantive grounds in France.
What is called procedural grounds in France?
Procedural grounds in France or contentious probate in English include:
- Undue influence
- Lack of testamentary capacity
- Fraud and forgery
- Lack of knowledge
- Legal reserve dispute
What is called substantive grounds in France?
Substantive grounds in France to contest a holographic or handwritten will are:
For example, if the will has not been written or signed by the hand of the testator, it can be invalid.
If heirs believe a document to be fraudulent, they can seek assistance to verify the authenticity of a will. They will have to evidence that the will hasn’t been written by the hand of the testator.
If the will hasn’t be signed, it may be invalid.
Lawyer to contest a will – challenging a will
Contesting a non-public or public will in France
What is a non-public will in France also called “testament mystique”?
Validity of a non-public will:
The person making the will writes entirely by hands, dates and signs. Each page must have a number and signed. Once this done, the will is given to a Notary in a sealed envelope.
Two witnesses must be present when the envelope is given to the Notary who will register it in a legal database.
How to contest a non-public will?
In France, a non-public will can be contested based on procedural and substantive grounds in France.
What is called procedural grounds in France for a non-public will?
Procedural grounds in France or contentious probate in English include:
– Undue influence
– Lack of testamentary capacity
– Fraud and forgery
– Lack of knowledge
– Legal reserve dispute
What is called substantive grounds in France for a non-public will?
Substantive grounds in France to contest a non-public will are:
For example, if the will has been stained or ripped or partially crossed out or erased, it can be invalid and contested.
Because a Notary is involved in the process, a non-public will is more reliable than a holographic will.
However, if an official requirement or act has not been completed, as the Notary has no access to the content, it will not engage the Notary’s responsibility. Typically, it means that the Notary won’t be responsible if the signature is not compliant.
What is a public will?
The will is drafted and registered by the Notary.
To be valid, the will must be written by 2 notaries or a Notary with 2 witnesses and the testator must dictated out loud it.
Finally, it’s important to note that some people can not be witnesses, such as:
- The beneficiaries
- Parents or siblings
- Notaries clerk
How to contest a public will?
In France, a public will can be contested based on procedural and substantive grounds in France.
What is called procedural grounds in France for a public will?
Procedural grounds in France or contentious probate in English include:
– Undue influence
– Lack of testamentary capacity
– Fraud and forgery
– Lack of knowledge
– Legal reserve dispute
What is called substantive grounds in France for a public will?
It is very difficult to challenge a public will as one or many notaries are involved in the process.
In France, a notary, known as “notaire” in French, is a legal professional who is authorized to perform various legal activities, with a focus on real estate and family law. Notaries play a vital role in matters related to legacy and wills. They assist in the drafting and execution of wills, and they handle the legal aspects of legacy, including the distribution of assets.
This is why is very difficult to contest such a will.
Despite all of this, a heir insists to contest it, then they will have to evidence the substantive grounds.
Moreover, the French civil law 972 stipulates that a will has to be written in French and read out loud in French, if the will does not mention the language in which it has to be written and read, then it can be challenged.
Lawyer to contest a will – challenging a will
Contesting an international will
What is an international will?
International wills are designed for testators who don’t live in France.
However, in October 1973, some nations signed up the Convention of International wills or the Washington Convention. The purpose was to harmonise the laws of the countries who were involved in the Convention in relation to the format of international wills. The countries are: France, Belgium, Italy, Canada, Portugal, Cyprus, Libya, Niger, Slovenia, Bosnia and Herzegovina.
The will have to be in writing, no matter what language it is written in. The testator will need to declare and sign the will in the presence of 2 witnesses and a Notary.
The will format is very flexible, however some criteria must be met:
- Insignificant criteria:
- It will not matter what language it is written in.
- The way of writing it.
- Important criteria:
- The testator will need to declare in the presence of 2 witnesses and a notary who must know what the contents of the document are.
- Each page must be numbered.
- The Notary is required to keep a copy of the will and the certificate as the testator
- 2 witnesses must be present and attest by signing the will
Grounds to contest an international will
You can contest a will for:
– Undue influence
– Lack of testamentary capacity
– Fraud and forgery
– Lack of knowledge
– Legal reserve dispute
Can a will be invalidated in France and still valid abroad regarding the Washington convention?
Yes!
Criteria not met in France does not mean an international will is not valid as to its form abroad if the criteria are met.
An international will provides additional peace of mind to the testator despite an invalidation of the will in France.
Un testament international non valide dans sa forme en France peut-il être valide au regard de la Convention de Washington du 26 octobre 1973 ?
Oui !
Un arrêt du 12 juin 2014, rendu par la première chambre civile de la Cour de cassation énonce que le non-respect de formalités propres au testament de droit français ne fait pas obstacle à sa validité en tant que testament international si les conditions posées par la Convention de Washington du 26 octobre 1973 sont respectées.
Un testament peut donc être déclaré nul dans sa forme nationale (en droit interne), tout en demeurant valable dans sa forme internationale (entendu comme « testament international »).
Le testament international offre une sécurité supplémentaire au testateur : à savoir d’assurer le respect des dispositions testamentaires du défunt, qui auraient été frappées de nullité en France.
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PacisLexis Family Law
You want to contest a will?
By engaging PacisLexis Family Law, you not only increase your chances of a successful outcome but also ensure that your rights are protected throughout the contested will proceedings, providing you with the support needed during a challenging and emotional time.
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