The discovery of a will is often one of the most sensitive moments in an inheritance. A child learns that he inherits less than expected. A home help receives a significant legacy. A neighbor becomes the beneficiary of a house or a substantial sum of money. In certain situations, the heirs then question the validity of the document and consider a challenge. The subject is far from being marginal: more than 350,000 inheritance declarations are registered each year in Franceaccording to data from the tax administration.
However, the simple fact of being surprised or dissatisfied with the content of a will is not enough to obtain its annulment. “There are several possible grounds for contesting a will. As with any legal act, we must distinguish the form and the content »begins Maître Ronit Antebi, lawyer specializing in inheritance law. Judges only call into question the last wishes of the deceased in situations precisely regulated by the law: insanity of mind, false will, abuse of weakness, formal defect or even infringement of the rights of reserved heirs.
What formal defects can lead to the annulment of a will?
The first series of disputes concerns formal irregularities. In the case of a holographic will, that is to say entirely written, dated and signed by the hand of the deceased, the heirs can claim that the document is not authentic. “On the form, the authenticity can be disputedthat is to say, maintaining that the will was not written in the hand of the testator or that there was an imitation of writing.underlines Master Antebi. In practice, a graphological expertise is often ordered to compare the handwriting and signature of the will with other documents of the deceased.
If forgery is established, the will can be annulled. Criminal proceedings for forgery and use of forgery may also be initiated. Authentic wills, drawn up before a notary, can also be contested. Articles 971 et seq. of the Civil Code impose strict formalities: the will must be received either by two notaries, or by a notary assisted by two witnesses. Failure to comply with these rules may result in the act being declared void.
Is insanity of mind the most frequent reason for dispute?
Yes. In inheritance disputes, this is the basis most often invoked. Article 901 of the Civil Code provides that “to make a gift, you must be of sound mind”. In other words, the deceased must have been able to understand the scope of his decisions when he wrote or signed his will. “The most interesting and most exploited foundation is insanity of mind. This is often the one that is most likely to succeed. »explains Master Antebi.
Insanity of mind does not necessarily imply psychiatric illness. It can result from any significant alteration of mental faculties. Neurodegenerative diseases, such as Alzheimer’sare among the most frequently invoked situations. But the courts also examine the consequences of certain strokes, neurological disorders or advanced states of confusion.
How can you prove that a person was no longer able to write a will?
This is often the heart of the matter. In accordance with article 414-1 of the Civil Code, the burden of proof rests on the person requesting the annulment of the will. The heirs must therefore demonstrate that the deceased suffered from a mental disorder at the precise time the document was drawn up. “ You really have to position yourself on the date of the will. The magistrates look at medical documents very close to their writing”insists Master Antebi. The judges give particular importance to:
- medical certificates;
- hospital records;
- neurological reports;
- guardianship or curatorship files;
- to the observations of caregivers.
“If we find mentions of cognitive disorders, temporo-spatial disorientation or significant memory problemsthese constitute very significant elements”specifies the lawyer. Testimonies from relatives can complete the file but are rarely sufficient on their own.
Is guardianship or curatorship enough to cancel a will?
No. Placing a person under guardianship or curatorship does not automatically lead to the annulment of acts that she has made before. The magistrates primarily examine the mental state of the deceased at the precise moment when the will was drawn up. On the other hand, when a will was established shortly before the opening of a judicial protection measure, this circumstance may constitute an additional indicator in favor of a challenge. “When a will was drawn up on a date very close to the placing under guardianship or curatorship, the judge will look at things with particular vigilance”explains Master Antebi. The existence of a protective measure therefore never exempts you from providing medical evidence.
Can abuse of weakness allow a will to be annulled?
Yes, but this foundation is often more difficult to establish. Abuse of weakness, defined in article 223-15-2 of the Penal Code, consists of taking advantage of a person’s vulnerability to influence his decisions in a direction that is unfavorable to him. In the context of an inheritance, it may be a neighbor, a caregiver, a family member or a relative who has gradually isolated the deceased in order to obtain a financial advantage.
“The problem of abuse of weakness is the proof. It is necessary to demonstrate the maneuvers, psychological manipulation or pressure exerted on the vulnerable person »underlines Master Antebi. The courts then look for specific clues: exchanges of messages, testimonies, unusual bank withdrawals, sudden change of beneficiaries or even gradual isolation of the deceased.
Can you completely disinherit your children through a will?
In the vast majority of cases, the answer is no. Unlike other countries, French law protects children thanks to the mechanism of hereditary reserve. Part of the deceased’s assets must be theirs, regardless of the content of the will.
The share that a person can freely dispose of, called available quotavaries depending on the number of children. Thus, when there is only one child, the deceased can freely transmit half of their assets. With two children, this freedom is limited to a third of the assets. From three children, the available portion drops to a quarter. “If a will provides for completely disinheriting a child, the notary will simply refuse to apply this provision,” recalls Master Ronit Antebi.
In practice, a will which grants an excessive share to a third party, a spouse or another heir is therefore not necessarily annulled as a whole. Injured children can initiate a reduction action in order to recover the portion of assets legally reserved for them. This procedure allows the judge to reduce legacies or donations that exceed the limits set by law.
The situation is different in the absence of children. In this case, a person has much greater freedom to organize their inheritance by will, subject to any rights recognized to the surviving spouse.
What happens if the beneficiary has already received donations during the deceased’s lifetime?
The will is not analyzed in isolation. To verify that the hereditary reserve has been respected, the notary fictitiously reconstitutes the assets of the deceased taking into account the donations made during his lifetime. “ We take into account everything that was given to the beneficiaryboth by donation and by will »explains Master Antebi. If all donations and legacies exceed the available portion, the heirs can take action for reduction. This procedure does not necessarily aim to cancel the will as a whole, but to reduce the legacies which infringe their rights.
Who can contest a will?
Not everyone can take legal action. To act, you must demonstrate a direct interest in the inheritance. In particular, the following may contest a will:
- reserved heirs;
- the surviving spouse in certain situations;
- a legatee harmed by a more recent will;
- any person whose inheritance rights are directly affected.
A simple distant member of the family cannot act if he does not have any rights in the inheritance.
What are the deadlines for contesting a will?
Deadlines vary depending on the legal basis used. The action for annulment based on insanity of mind is subject to the common law limitation period of five years. This period runs from the moment the heirs discover or should have discovered the facts enabling them to act.
The action for reduction for infringement of the hereditary reserve must be exercised within five years following the opening of the succession or within two years following the discovery of the attack, without being able to exceed ten years after the death. These deadlines are particularly important: a dispute filed too late will be rejectedeven if the arguments are well-founded.
What are the signals that should alert heirs?
Certain clues come up regularly in inheritance disputes:
- a will discovered after the death when no one was aware of it;
- a sudden change of beneficiary;
- the designation of a neighbor or caregiver as the main heir;
- unusual bank withdrawals before death;
- a heritage clearly lower than what the family imagined;
- a will written shortly before hospitalization or a legal protection measure.
“When an heir notices that the assets transmitted do not correspond to what he knew about his parent’s financial situation, this often merits verification », underlines Master Antebi. Because when it comes to inheritance, evidence disappears quickly. Medical records, testimonies and banking documents often constitute the decisive elements which will make it possible, or not, to obtain the annulment of a will in court.
