By a decision of September 5, 2018 (No. 17-26.010), the First Civil Division of the French Supreme Court confirms that an authentic will, which is void in its form under French domestic law, may nevertheless be valid as an international will and thus can produce all its effects.
But that’s not all. The Supreme Court adds that the formalities prescribed by the Washington Convention of October 26, 1973 are validly carried out when they are « carried out in the presence of two French notary (« notaire »), by equivalence of the conditions laid down in domestic law in Article 971 of the French Civil Code ».
First, it should be reminded that the provisions of the Washington Convention of October 26, 1973 on a Uniform Law on the Form of an International Will, signed by France on November 29, 1974 and published by decree of November 8, 1994, provide that:
• The international will must be made in writing
• The testator must declare in the presence of two witnesses and a person authorized to act for this purpose (in France, the « notaire ») that the document is his will and that he knows its content
• The testator must sign his will or confirm his signature in the presence of the two witnesses and the authorized person
• The witnesses and the authorized person must sign the will at the end of it, in the presence of the testator
• The authorized person must date the will, at the end of it, on the day of his own signature.
However, a certain freedom is left to the testator since he can write his will in the language of his choice, by the procedure of his choice (handwritten or other), that he may not write it himself, and that he is not required to give knowledge of its content, neither to witnesses nor to the authorized person.
The formalities required to ensure the validity of an international will are therefore less than those required for the validity of an authentic will under French law.
Indeed, for an authentic will to be valid, the testator must dictate its content to a French notary and two witnesses or two notaries. It is up to the notary to write the will, by hand or mechanically, and then he must read it to the testator. Dictation must be done in French or through an interpreter, unless the notary(s) and witnesses understand the language of the testator. The will must then be signed by the testator in the presence of the notary(s) and witnesses, who also sign it.
Finally, it should be noted that witnesses may not be « legatees, in any capacity whatsoever, or their relatives or allies up to and including the fourth degree, nor the clerks of the notaries by whom the deeds will be received » (article 975 of the Civil Code).
This decision of the Supreme Court reaffirms the principle: even if a condition for the validity of the authentic will is not met (in this case the dictation formality), and it is then null and void under French law, nothing prevents the validity of the act as an international will, provided that the formalities of the Washington Convention are respected.
In this respect, the Supreme Court considers that the absence of two witnesses can be compensated by the presence of two notaries, one of whom is, at the same time, the instrumental notary.
The French Supreme Court arrived at this solution by reasoning in two stages:
• First, by referring to Article 5 of the Washington Convention, which provides that « the conditions required to be a witness to an international will are governed by the law under which the authorized person has been appointed », said Article thus referring to domestic law.
• Second, referring to domestic law in accordance with the aforementioned provision, here Article 971 of the Civil Code, which provides that « A will by public deed shall be received by two notaries or by a notary assisted by two witnesses ».
Consequently, the French Supreme Court decided an « equivalence of conditions » between the notary and the two witnesses of the Washington Convention of October 26, 1973 and the two notaries of Article 971 of the French Civil Code.
Should this be seen as a desire of the French Supreme Court to make the rules governing the form of wills, which, if they are not respected imply that the will be null and void, more flexible in order to promote recognition of the validity of international wills and to facilitate their enforcement?
Audrey KANDALA
KMK AVOCATS 