THEhe so-called “holograph” will is, a priori, subject to only one condition: to be “Written in full, dated and signed by the hand of the testator”. THE’article 970 of the Civil Code specifies that it is not “Subject to no other form” : it can therefore be written on any medium, in ink or pencil, in French or in a foreign language… on condition, however, that this language is understood by the author, as the following case shows.
On May 14, 2003, Mr. X, a citizen of German nationality, died in France. His three children discover that he made his sister, Mme Y, his universal legatee, and that he bequeathed to him the available portion of his property, by means of a holograph will, drawn up in French, on March 25, 2002. Mr. X wrote, dated and signed this deed, as it suits.
Mr X attached to his will a document in German entitled ” translation “, written the same day, but by someone else. Unlike the French text, this document designates Mme Y as executor of the will; he bequeaths it to him ” patrimony [et non la quotité] available “.
Translation differences
In July 2009, Mme Y, who has still not obtained the deliverance of his bequest, assigns his three nephews. They reply that the will is void, because it was written in a language their father did not understand. The sexagenarian was certainly installed in France since 1999, but he still did not speak French in 2002. The X affirm that the differences which exist between the German text, presented to their father so that he understands the meaning of what he wrote, and the French text prove that the testator could not “Express an enlightened will”.
The use of an interpreter, now authorized
We had to wait for the Feb. 18, 2015, date of entry into force of a law modernization and simplification of the law, so that the use of a interpreter is possible, provided that it is sworn.
Previously, it was forbidden, as this example illustrates: on December 11, 2007, Saïd X, an Algerian octogenarian, went to a notary with two witnesses and a sworn interpreter in Arabic, in order to have an authentic will drawn up. He dictates his last wishes to the interpreter, who translates them to the ministerial officer, who types them.
When Mr X dies, two of his children request the annulment of the will, which deprives them of any participation in the available portion. They argue that under article 972 of the civil code, din its version then in force, “ the will must be dictated by the testator to the notary ”, which prohibits the assistance of an interpreter, of which it would be impossible to verify that he translates the words with fidelity.
The Montpellier Court of Appeal finds them wrong, March 26, 2015, observing that the translation was provided by ” by a sworn expert […] whose mission is to faithfully translate, that is to say without interpretation or distortion, the words made “. But the Court of Cassation quashes its judgment on June 12, 2018 (n ° 17-14.461): “ Saïd X should have dictated himself, without intermediary, his last wishes to the notary. “
The tribunal de grande instance of Thonon-les-Bains (Haute-Savoie) admits that the testator’s consent was vitiated, but the Court of Appeal of Chambéry overturns its judgment, June 25, 2019. She considers that “The two writings are not opposed, the French document being simply more complete and legal”. It validates the latter.
The heirs appeal in cassation. They argue that “The formal requirement imposed by the civil code” is intended to ensure that the will is “The authentic expression of the personal will of its author” ; and that this requirement ” Assumed ” that the will be drawn upé “in a language understood by its author”.
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