Testamentary capacity
In Germany, anyone who has reached the age of 16 can make a notarial will.
In France, the testator must have reached the age of 18. Minors between the ages of 16 and 18 may dispose of half of what they are able to dispose of in a will.
Forms
In France, four forms of will are permitted:
1. The notarial will („testament authentique“)
The requirements for a notarial will in France are more extensive than in Germany. The notarial will is drawn up by two notaries or one notary and two witnesses. After being drawn up, the will is read out by the notary and signed by all parties involved.
2. The handwritten will (“testament olographe”)
A testament in manuscript is completely handwritten by the testator, dated and signed. The signature must be placed at the end of the will to confirm its conclusive character. If further dispositions are made bellow the signature, they must be confirmed with another signature.
3. The secret will (“testament mystique”)
The secret will is handed over to the notary in the presence of two witnesses in a sealed envelope for safekeeping.
4. The international will (“testament international”)
The testator may draw up a will in accordance with the regulations of the Washington Agreement of 26 October 1973. The international will is signed by a notary and two witnesses. It can be written in any language.
Witnesses must be of age, speak French and not be married to the testator.
In France, wills (especially handwritten wills) can be registered in the Central Register of Wills (“fichier central des dispositions de dernières volontés”). This is done by the notary.
The Berlin Testament, which is widely used in Germany and according to which the spouses appoint each other as sole heirs, does not exist in France.
Instead, French law offers the institute of continued community of property (“communauté universelle avec clause d’attribution intégrale des biens au conjoint survivant”). The advantage is that there is no division of estate in the event of death. Instead, the surviving spouse continues the community of property in his or her own and sole name. The children only inherit after the death of the second spouse. The legal choice of continued community of property is established by means of a marriage contract.
The children may nevertheless assert their claim to the compulsory portion (“réserve héréditaire”). This usually will be the case if there are children who do not originate from the marriage.
Conditions
The will must be written in French. If there are communication problems, a qualified translator may be called in to explain each stipulation to the testator in his or her home language in a comprehensible manner.
The will is freely revocable at any time.
The testator is free to bequeath his or her assets as a whole, fractions of his or her assets (“leg universel”) or only individual items (“leg particulier”). The restriction here is the right to a compulsory portion. Two decisions of the Cour de cassation from 2018 confirmed that the right to a compulsory portion constitutes ordre public interne, which may not be violated.
As soon as different legal systems come together, matters become very complex. We will be happy to advise you on cross-border family and inheritance law!
