Uan elderly person who has lost their autonomy and a person suffering from a fatal illness are they in the same state of vulnerability, vis-à-vis the people who assist them – home help in one case, nurse in the other? Is the risk of influence and seizure of property greater in the second case? This is the question posed by the following case.
On April 13, 2014, Geneviève T., childless widow, died of cancer. His will leaves to his brother, Jean-Louis T., a building worth 3 million euros, which depended on the estate of their parents, and her nurse, Marie D., whom she considered ” as [sa] daughter “, goods worth 870,000 euros.
MT disputes that Mme D. has the right to receive this share of inheritance: she has, since 2012, “provided care” to Genevieve, “for the disease from which she died”. However, in such a situation, thesection 909 of the Civil Code prohibits caregivers from accepting legacies.
Second QPC
Mme D. assigns M. T., and wins, by first case then in call : the magistrates consider that Geneviève could not be under his influence when she wrote her will, since she was not to know the diagnosis of her cancer until four days later. But the Court of Cassation censures this reasoning, recalling that “inability to receive a bequest” is not related to the date of diagnosis of the testator’s illness (19-15.818).
Before the Court of Appeal referralsupposed to dismiss Mme D., this raises a priority question of constitutionality (QPC). She asks whether article 909 of the civil code is in conformity with the Constitution, while, by correlation, it prevents the sick person, whether he is sane or not, from freely disposing of his property.
This question has already been put to the Constitutional Council, with regard to thearticle L.116-4 of the social action and family code, which prohibited the elderly from bequeathing property to their home helpers. the March 12, 2021the Constitutional Council, judging that it infringed “disproportionate” to their right of ownership, repealed it.
Before the members of the Constitutional Council of the Palais-Royal, to whom the QPC is sent (22-40.005), Me Ronald Maman, lawyer for Mr.me D., asserts that this solution must be “transposed » to caregivers (see video). He indeed maintains that the fact of being seriously ill does not imply that one is under the influence of the latter. What M disputese François Pinatel, lawyer for Jean-Louis T., for whom the patient is in a situation of“extreme vulnerability vis-à-vis the one who provides care”.
It is this last point of view that the Constitutional Council adopts when, on July 29 (2022, 2022-1005), it declares Section 909 “in accordance with the Constitution”.
He indeed judge that“in view of the nature of the relationship between a health professional and his patient suffering from a disease from which he is about to die, the prohibition is well founded on the situation of vulnerability in which the donor or the testator finds himself regard to the person who cares for him”. He concludes that “infringement of the right to property which results from the contested provisions is justified by an objective of general interest and proportionate to this objective..
The secular prohibition (enacted by François 1er in 1539, taken over by the Civil Code and extended in 2007 to “medical auxiliaries”) will therefore continue to protect the patient… even against his will.