Lawyer to contest a will: Challenging a will

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.

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.

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.

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.

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.

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.

In France, a non-public will can be contested based on procedural and substantive 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

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.

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

In France, a public will can be contested based on procedural and substantive 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

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.