According to the law, an heir can be deprived of an inheritance if the deceased’s will is poorly drawn up. A prohibition mentioned in article 968 of the Civil Code can block the transmission of an inheritance.
For a married couple, inheritance management is relatively simple. If one of the two spouses dies, the other is still heir. However, the surviving spouse does not automatically receive the entire estate. His share of inheritance depends on the presence or absence of children within the couple. If the deceased had children during a previous union, this also modifies the division of the estate. In fact, the surviving spouse can obtain a quarter or half of the deceased’s assets. In certain cases, he can even receive the usufruct of the entire estate.
On the other hand, the civil solidarity pact (Pacs) or free union proves less protective for the surviving partner. In the absence of a will stipulating to the contrary, the person who survives their PACS partner or common-law partner has no right to the deceased’s inheritance. If making a will is therefore essential, for civil partnerships or cohabiting couples who wish to pass on their assets to each other, the document must still be correctly drawn up. The slightest error can lead to the cancellation of the will and the loss of the estate for the surviving member of the couple.
It was precisely an error in drawing up a will that recently led a woman to lose the inheritance she thought she could benefit from after the death of her partner. The latter, named Bernard, died in 2012. Well before that, in 1999, the deceased had entered into a civil partnership with his partner Catherine. A will was annexed to the PACS contract stipulating the pooling of all their movable and real estate assets in joint ownership. The document stated that in the event of the death of one or the other, all of the couple’s assets should go to the surviving partner.
However, after Bernard’s death, Catherine receives a summons to court. Bernard’s mother, two sisters and brother contest the validity of the will and request the sharing of his estate. On March 18, 2016, the verdict fell: the court ruled in favor of the members of Bernard’s family. Refusing this decision, Catherine appealed to the Nancy Court of Appeal, but once again lost her trial on May 23, 2017.
Determined to preserve Bernard’s inheritance, Catherine appealed to the Court of Cassation. She wants the will written and co-signed with Bernard to be recognized as valid. In particular, she contests the decision of the Court of Appeal which found that she was not Bernard’s sole heir but co-owner with the other members of the deceased’s family. Finally, she criticizes the magistrates for having ordered her to pay, to Bernard’s other heirs, occupation compensation because she had occupied the deceased’s real estate alone since 2012.
Despite these complaints, the Court of Cassation rejected Catherine’s appeal. The country’s highest court recalled that “according to article 968 of the Civil Code, a will cannot be made in the same writing by several people.” Clearly, writing a will is an individual process. If two people jointly make a will in which they leave their property to each other, then the act is called a “joint will”, and it is illegal.
The Court of Cassation underlined that “the will must be able to be revoked or modified at any time unilaterally by the person who is its author”. However, a conjunctive will implies that a modification or revocation of the act must be carried out by a common will of the parties, which hinders individual freedom, particularly if one of the authors is subject to the influence of the other.
In its judgment of July 4, 2018, the Court of Cassation therefore confirmed Catherine’s conviction. She had to pay occupation compensation to Bernard’s other heirs.
