Wills and incapacity

Drawing up a will to express your last wishes and organise the transfer of your estate is an important step.

However, when a person becomes incapacitated or loses their autonomy, the situation becomes more complex, especially if protective measures are put in place.

Vulnerable people need to be protected from outside pressures that could lead them to distribute their assets in a way that does not correspond to their true wishes.

In Monaco, there are two forms of protection that provide different levels of control over the actions of adults: curatorship and guardianship.

With regard to the specific case of the drafting of a will, an adult for whom a curatorship measure has been implemented may freely make a will, without any prior verification being necessary or any form being imposed.

Guardianship, on the other hand, lays down a relatively strict framework with regard to the drafting of wills.

According to article 410-27 of the Civil Code, an adult under guardianship may only make a will if:

• He/she is in a condition to express a conscious and free will at the time of making the will
• The authentic form is used

It must therefore be established that the person is actually capable of expressing his or her wishes validly, before any drafting is considered.

According to articles 410-1 et seq. of the Civil Code, if a mental disorder is established at the time the will is drawn up, even independently of any protective measures, the will may be declared null and void.

It is therefore essential to anticipate these situations and, if necessary, to consult a professional to take the appropriate measures, guarantee the validity of the will and prevent any subsequent challenge.