Is any one here familiar with how article 970 of the French Civil Code is applied in practice? For a holographic will to be valid, it must be “entirely written”, dated and signed in the testator’s own hand. What does “entirely” mean here? If the will is written on an English stationer’s will-form, but in such a way that just the words in the testator’s own handwriting could reasonably be construed as a making testamentary dispositions, does it matter that there are printed standard-form words obviously intended to form part of the will on the same page?
Any thoughts welcome.
Alexander Learmonth
New Square Chambers
A holographic will is generally 100% written in the willmaker’s own
handwriting, and all the one’s I’ve done, that have successfully been
endorsed by a French notaire with a certificate of conformity with
French law, have been written on completely blank paper. Why do you
want to use an English stationer’s will form? There also cannot be any
witnesses.
Lee Harris
Foley Hughes, New Zealand
Thanks Lee. This is a will that has already been written on the form - I certainly wouldn’t choose to use one in any situation, let alone when making a French holograph will!
I’m interested in your point about no witnesses (I assume you mean their signatures) being permitted - it seems a strange requirement, and is not expressly stated in art 970. Are you aware of the authority for that?
Alexander Learmonth
New Square Chambers
If any other handwriting or addition appears on the olographe will, it is void.
Technically, even an amendment or crossing out by the testator can render an olographe will, as that is the correct term, suspect.
There is nothing but authority in France for this as it is the actual concept of the will that it be entirely handwritten and unwitnessed as the purpose of the olographe is the pure written expression of the testator’s wishes and intent without influence.
It is usual in France for the notary to read out to the testator what needs to be written to bring their wishes about. However, as the deed is not formally received by the notary, and not stamped or otherwise mishandled, there is no other official written trace of the signature and the wills existence saving by registration under the French register of testamentary dispositions. The notary frequently holds the original in their files for safe keeping, but the testator can if they wish keep it in their personal files.
On the decease of the testator, the notary in possession of the original of the will, will then in effect validate it formally by a certificate and a notarially lined copy to prevent any further additions. The notary has the power and the duty to do that, post mortem in order to ensure public order in immovable transfers . You will find that the French tax administration will only accept a notarised copy of the olographe will established on notice of the decease. In any succesion declaration, the déclarant is required to give the name and address of the notary holding the will or having received it.
Notaries frequently advise an olographe will to avoid any insinuation by foreign heirs or legatees that the testator did not know what they was doing. If they write it out and signed it, it is difficult to argue that for example, he was duped into signing a typed, and witnessed deed a misapprehension. Given the very different system of will drafting in the United Kingdom, involving such subtleties as will trusts, this civilian concept of straightforward property transfer can be difficult to appreciate from these sceptr’d isles.
The “authority” is the very concept itself, as the Code merely codifies existing concepts, sometimes giving them a universal definition where there is a conflictual customary context. There is none here.
You should be able to find a receuil in one of the Inn Libraries, I believe that the Middle Temple has one, and I suspect Lincoln’s Inn will be able to find one for you.
There was therefore no need to stipulate any absence of witnessing for an olographe will at the level of the Code, and there never has been.
The whole issues of the witnessing requirement and what it proves varies from jurisdiction to jurisdiction. A comparison between the English concept and the South African conception showed that in a recent thread.
I hope that this helps. If you need a hand ring me on 01534 625879.
Peter Harris
Thanks. That seems clear then!
Alexander Learmonth
New Square Chambers
I had not had the initial e-mail, so forgive my In addition to my other comment I would suggest that the answer lies in the wording of article 970:
"
Le testament olographe ne sera point valable s’il n’est écrit en entier, daté et signé de la main du testateur : il n’est assujetti à aucune autre forme.
I would hesitate before even suggesting that what is in effect a solicitor’s form for an English will would pass, under the phrase “en entier”, whilst ruled paper is just about acceptable, .but even that is frowned on, and sometimes rightly refused.
En entier refers to the main du testateur, so anyone else’s paw marks or printed background on the paper will render it void. Exceptions are made here where the testator uses their own headed paper for the will.
Peter Harris
Overseas Chambers