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Will and codicil: what to do in case of conflict ?

Home > Inheritance and succession | Published 2020-03-19


Have you written a will you wish to amend? You are an heir to an estate, and you have been informed that a new person has been added to it by a codicil? Did you just find out that you were removed from a relative’s will? In such cases, the drafting of a codicil by the testator and the request for its nullity may be made by one or more heirs. Requesting an attorney ‘assistance is the best way to challenge the validity of a codicil or to enforce it. Picovschi lawyers, competent in succession law for over thirty years, will help you better understand your options in such a case and offer you the best defense possible.

Is it possible to modify certain provisions of one’s will ?

If you are a testator and you wish to make changes to certain provisions in your will, the drafting of a codicil is necessary.

A codicil is an addendum to the will that changes the content of the will. There is no text defining what is a codicil. It is the result of an expression derived from notarial practice.

When drafting this amending document, certain strict formalities must be observed which vary according to the way in which the codicil was written.

- If the will is holographic, the codicil must be handwritten and signed by the testator himself and the date of writing must also be included.

- If the will is authentic, the codicil must be written by a notary in the presence of witnesses according to the will of the testator.

Care should be taken to ensure that witnesses present at the signing are not in conflict with the provisions of Article 975 of the Civil Code. The latter provides that the witnesses may not be “the legatees, in any capacity whatsoever, or their parents or allies up to and including the fourth degree, or the clerks of notaries by whom the documents will be received.”

If this formalism is not respected, the nullity of the codicil may be requested by one of the heirs.

The testator must also be clear-sighted and in full possession of his means when drafting the codicil.
If the codicil does not respect the rules of formalism, it is possible to contest it.

The codicil does not allow for major changes to the will. A new will should therefore be drawn up. For example, if the testator wishes to modify the share of an heir, he will not be able to do so through the drafting of a codicil but rather a new will.

If the testator does not revoke the old will, the old will will be deemed tacitly revoked and will be replaced by the new will only with respect to the incompatible provisions between the two.

The main purpose of a codicil is to make modifications to specific provisions.
However, the drafting of a codicil often tends to create conflicts between heirs.

How do you challenge the validity of a codicil ?

Heirs sometimes question the authenticity of a will and/or codicil. Thus, when there is doubt about the writing that appears not to be from the same person, or about the mental state of the testator at the time of writing, a conflict may arise.

It is possible to request the annulment of the codicil if one of the following applies:

-  Abuse of the testator’s weakness at the time the codicil was written may be grounds for nullity but tends to be difficult to prove.

- The excess of powers granted to the executor may result in the invalidity of the codicil if these powers exceed those listed in Article 1031 of the French Civil Code.

- The insanity of the testator at the time the codicil was drafted must be demonstrated by the person who invokes the nullity of the codicil (judgment of the Second Civil Chamber of the French Court of Cassation of  March 6th  1984)

-  The illegal appropriation of inheritance may also be a ground of nullity, which is defined by the Court as “a set of reprehensible maneuvers performed for the purpose of inducing a person to consent to a liberality that he would not otherwise have consented to.”

- The presence of certain witnesses prohibited by Article 975 of the French Civil Code.

Concrete evidence will be needed to challenge the codicil and ask for its nullity.

Picovschi lawyers, have an extremely wide experience in succession law and international succession law and are here to accompany you throughout this difficult time.

This article is available online for public information purposes. It is updated regularly, as needed. Due to the constant evolution of the laws and the legal system, we cannot guarantee that the information in this article is still applicable. We invite you to contact us with any legal questions or concerns you have regarding this topic at +33 1 56 79 11 00. In no way can this firm be held liable for articles that contain inaccuracies or are now out of date.

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