Can you make a will by text message?

Florence Richards

French Property/Tax Adviser

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October 3, 2019

Categories French Property Law UpdatesPrivate Client Law Updates

Can you make a French or English will by text message?

A recent joint conference of Kent Law Society members and French lawyers (avocats) gave a good forum for discussing many issues relating to succession in both countries. Two points of comparison and contrast were the validity of Wills and the use of electronic deeds and signatures.

For a Will to be validly executed under English law it must be signed by the testator in the presence of two witnesses. The Will can be handwritten or typed.

For a Will to be validly executed under French law it must either by typed by a Notaire and signed in the presence of two Notaires or one Notaire plus two witnesses (a testament authentique) or it must be written out, dated and signed entirely by the testator’s own hand, with no need for witnesses or any other formality (a testament olographe).

Holographic (handwritten) Wills are popular in France. They don’t require the need for a Notaire, and can follow a simple format. However, this doesn’t detract from the importance of needing to understand the options for the best structure of your Will, taking into account constraints of French law, whether you can in fact opt for another country’s succession laws to apply (applicable since August 2015), and the tax consequences of the way in which the Will is structured.

An interesting case arose in France recently. Shortly before his death, a gentleman sent a text message to his sister stating that he wanted to leave his “share” to his mother. He was survived by his wife and children. French law grants fixed inheritance rights of children and a surviving spouse – the “legal reserve” which is a portion of the estate. This portion can’t be left to other people. He could therefore only deal with the transfer of the freely disposable portion of his estate by leaving it to someone other than his wife and children. He chose his mother.

The mother argued the validity of the text message as amounting to her son’s Will, being his expression of his last wishes for his estate. The wife argued that the message had no legal security, and there was no clear evidence that he was indeed the author of the text. It went against the French Civil Code, which since 1803 has stated that this type of French Will must be handwritten. The lawyer for the mother argued that perhaps the law should be adapted to current day methods of communication and today’s digital age. The text was not held to have made a valid Will.

French law is clear that a holographic Will must be written entirely by the hand of the testator. It doesn’t specify what the Will should be written on (and in fact a Will handwritten on the side of a washing machine as been upheld as being valid!). This highlights the importance of getting it right when it comes to the way a Will is prepared, as well as getting the content right to suit your own circumstances.

This leads into the current developments on the validity of documents that are signed electronically. A deed to buy a property in France can be executed with electronic signatures, but those signatures must be made in the presence of the Notaire. In fact, electronic signatures in France have been possible for over 10 years. The Law Commission in England and Wales has recently confirmed that in some circumstances electronic signatures are as valid as a “wet” signature would be, provided all other formalities are followed. However, a Will would still need to be physically signed in the presence of two witnesses.

We are not yet at the stage of being able to fully embrace the digital age when it comes to executing all types of documents, but perhaps it’s not as far around the corner.

For advice about French property and estates contact the our French property team.  For advice about English wills, contact Rich Risino on 01227 763939.