QWhat type of will do malicious individuals have to choose to get an elderly person to bequeath their property to them, without the notary noticing that they no longer have all their faculties and without the act risking, a posteriori, to be annulled by his heirs? “This cynical question, the opponents of my clients have asked themselves”assures M.e Marc Geiger, lawyer for the two heirs of a deceased, Maryse X: “The search of their computers showed that after a long search, they discarded the authentic will”this must be drawn up by the notary, under the dictation of the testator.
“They also avoided the holographic will”, which must be entirely handwritten by the testator. “So they chose the mystical testament”Where ” secret “which can be handed over to the notary “ closed, sealed and sealed”as the following case reminds us.
When Maryse X, widow Y, childless, dies in 2015, her brother and sister discover that the succession escapes them: by means of a mystical will, Maryse has made her brother-in-law, Jean Y, the sole heir of his property.
L’“deed of subscription” that the notary drew up when it was handed over on July 31, 2014, indicates: ” [Elle] presented a sheet contained in the present envelope, which she declared to represent her will”. This one being typed, she claimed to have personally checked the wording, by reading that[elle] made it”. In short, everything would have happened in accordance with the procedure provided for by the Civil Code (section 976).
“Neither read, nor write, nor speak”
However, on July 31, 2014, Mme X, suffering from a disease that made her blind, could no longer “neither read, nor write, nor speak”as certified, a week earlier, by her attending physician and an expert psychiatrist, specifying that she was speaking by “grunts”. She was already under the protection of a legal representative.
How could she ” read “ and ” check ” the content of the will? The heirs assign Jean Y, in order to obtain the cancellation of this act, on the basis ofitem 978 of the civil code, according to which ” those who do not know or cannot read cannot make provisions in the form of the mystical testament”.
October 12, 2022 (2022, 21-11.408), they (finally) win their case: the Court of Cassation validates the reasoning of the trial judges, according to which Mme X “could not read the will” – the magistrates of the Court of Appeal of Nîmes (Gard) having also noted that“no element of the act itself or of the superscription comes [les] shed light on how Maryse X could have read it (magnifying glasses or computer zoom or other) “. They judge that“in the absence of certainty about the expression of his last wishes”, the act “was to be cancelled”.
The Court of Cassation also refuses to requalify the secret will as an international will, a new form of will that the States parties to the Washington Convention of October 26, 1973 are required to introduce into their domestic legislation. This “rescue” is only possible when the will is affected by a formal nullity, and not by a substantive defect which casts doubt on the will of the settlor..
The heirs, who, moreover, had, in December 2015, filed a complaint for abuse of weakness, have just learned that the public prosecutor of Avignon (Vaucluse) has requested the dismissal of Mr. Y and a accomplice in criminal court. But that the notary escapes prosecution, for lack of “sufficient loads » against him: before the investigating judge, he indicated that he had, in fact, “read [lui]-same “ the will, then asked Maryse if he was expressing his last wishes, and obtained a “yes unequivocally”…Probably a growl?