Testamentary capacity and will contests
What you need to know
Article 770 of the Civil Code
Article 770 of the Civil Code provides:
"Any person, other than those declared incapable by law, may dispose of or receive property, whether by gift inter vivos or by will."
Accordingly, an individual's capacity to make a will is always presumed.
By way of exception, the law provides that minors under 16 years of age lack testamentary capacity. Similarly, minors under 18 years of age may only dispose of half of their assets by will.
The law also makes special provision for adults placed under guardianship (tutelle).
Although not subject to a general prohibition on making a will, an adult under guardianship may only draw up a will "at such time as they are able to express a conscious and free will" and only by means of an authenticated deed executed before a notary1.
The presumption is therefore reversed for such persons, who are presumed to lack testamentary capacity unless proven otherwise.
It should be noted that adults benefiting from a protective measure other than guardianship, namely judicial protection (sauvegarde de justice) and curatorship (curatelle), may make a will freely.
Article 410-2 of the Civil Code
Under Article 410-2 of the Civil Code, it is possible to contest a will by raising the testator's incapacity. In such cases, if the incapacity is established, the will shall be declared void.
To this end, the party claiming the nullity of a will must establish that the testator lacked capacity at the time the will was drawn up.
Such incapacity may be proved by any means. Medical evidence diagnosing a psychiatric condition or attesting to mental disorders carries significant probative weight. The submission of witness statements or evidence of atypical behaviour (photographs, letters, etc.) may also serve to establish the testator's incapacity.
In light of the above, and in order to minimize the risk of contestation, persons wishing to draw up their will are advised to choose its form carefully, as a notarial deed is more difficult to contest than a will written on a simple sheet of paper. Finally, depending on the testator's age, it is also advisable to append a medical certificate attesting to the testator's capacity on the date the will is executed.
1 : Article 410-27 of the Civil Code
