Will (right)

History

The will seems as old as the history of the writing, just as the manners of circumventing the law relating to it, for example by the means of a Fidéicommis.

It is spread in Occident with the wills of crusade , written by the crusaders before their departure for the Croisade. It is by a will of crusade that Louis VIII of France creates the first Apanage S in favor of its puînés sons, Alphonse of Poitiers, Robert d' Artois and Charles of Anjou.

Will in France

The rules framing the wills are envisaged by articles 893 and following Civil code French.

Who can make a will?

1- Legal capacity

To be able to write a will legal capacity should be had to have its goods (to be able to sell them, to rent them…).

In theory, it is necessary to be old of more than 18 years. However, the minor émancipés can establish a will and the old minors of more than 16 years can have half of their goods.

The major ones under Tutelle cannot establish will.

2- Capacity in fact

It is necessary moreover to be recognized " healthy of esprit" to write a valid will.

In the event of dispute, it is to the judge to decide if the testator (that which made the will) was or not in full possession of his mental faculties during the drafting of the will.

What can one bequeath?

1- Which goods can one bequeath?

One can bequeath only the goods belonging to you into clean, likely to be sold.

One cannot bequeath his name, or an honorary title.

2- can one bequeath all his goods?

If you have children, neither ascending (parents, large parents the) alive ones and nor of spouse entitled to succeed, you can have the whole of your goods.

In the contrary case, part of the goods returns to them obligatorily; it is the " reserve ". On the other hand, one can freely have the remainder, called the " Share available ".

Since January 1st, 2007, the ascending ones are not any more heirs réservataires. Nevertheless, they always profit from a right known as " of return légal" who allows them to take again the goods given to late (their child or small-child), within the limit of the hereditary shares envisaged by the law (1/4 per relative).

3- How to distribute the share available?

It is possible of:

to make a universal Legacy, i.e. to bequeath all its goods to one or more people,
to bequeath goods on a purely universal basis, i.e. to bequeath part of the goods to one or more people,
to make particular legacies, i.e. to bequeath one or more goods to one or more people.

The various shapes of will

There exist the four shapes of wills.

1- Holographic will holographic It is the most current shape of will.

It is written with the hand: It should not be typed with the machine, even partly.
it is written on plain paper, or any support " durable" (its drafting was allowed on a wall of prison) dated precisely and signed hand of the testator.

He does not require any other particular formality. He does not cause expenses, and is easily revocable since it is enough to destroy it or to write new which cancels and replaces the precedent.

The holographic will presents several disadvantages:

it can be destroyed after the death of the testator or mislaid,
its validity can be blamed (date absent or incomplete…),
it can contain contrary provisions with the right.

Also it is preferable to ask council a professional of the right for his drafting, and to deposit it in a notary for conservation.

2- Testament authenticates

It is a authentic Acte, received by two notaries or a notary assisted of two witnesses.

the testator dictates the will, and the notary writes it or the fact of writing with the hand or mechanically.
the will is read with the testator, then signed by this last in the presence of the notary and of the witnesses who sign it then.
the drafting causes expenses.

3- mystical Will

Enough complexes, it is used little.

the text is typed or written with the hand by the testator or another person, signed by the testator, then introduced closed and sealed in front of a notary in the presence of two witnesses.
the notary draws up a report of the handing-over.
the drafting causes expenses.

4- international Will

Resulting from the Convention of Washington of the October 26th 1973, into force in France since December 1994. It is a simplified form making useless the mystical will. Not limited to the international relations, this form can be used, even without bond of extraneity.

The goal is to institute a testamentary form recognized valid by the greatest number of State.

Legal forms hardly of nullity (solemn formality):

- A writing, by the testator or a third. The language does not import. Writing or not with the hand.

- In front of 2 witnesses and a person entitled to instrument (in France the notary): " this is its will and that he knows his contenu" of it;

- Signature of the testator.

Legal forms hardly of inadmissibility:

- Date at the end of the will. The proof can be done by all means.

- A competent person must attest that the formalities were respected: that a specimen was provided to the testator and another preserved by the notary (= Preuve of validity).

- Registered voter with the central data base of the testamentary provisions

Revocation and cancellation

It is possible constantly to revoke or modify a will.

1- Revocation of will

For that, it is necessary:

is to make an act of declaration of change of will in front of notary; the act is received by two notaries, either by an assisted notary of two witnesses,
or to make a new will, cancelling the precedent, whatever of or the form.

If you established a holographic will and preserved it on your premise, you can constantly destroy it (by tearing it, by burning it.). You can also sell the bequeathed good.

2- Revocation and legal cancellation

The revocation is possible:

if the legatee does not carry out the loads imposed by the testator,
in case " of ingratitude" of the legatee against the testator (maltreatment, insults…).

The request for revocation is examined by the Court of Bankruptcy of the place of the succession.

The cancellation of the will is possible:

in the event of nonrespect of the forms (holographic will typed with the machine, absence of date…),
if the testator were not healthy of spirit or were unable juridically,
if the recipient does not have the right to receive legacy (doctor having looked after the testator…).

The assignment in nullity of the will must be addressed in front of the Court of Bankruptcy of the place of the succession.

See too

Donation
Death taxes
Legacy
reserve and share available
succession

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