Inheritance: when mystical will is used to commit abuse of weakness

What type of testament of malicious people must choose to obtain that an elderly person bequeath their goods, without the notary notes that he no longer having all his faculties and without the risk, has posteriori, to be canceled by his heirs? “This cynical question, the opponents of my clients have been asked,” says M ^E

é> Marc Geiger, lawyer for the two heirs of a deceased, Maryse X: “The excavation of their computers has shown that ‘At the end of long research, they dismissed the authentic will “, this one having to be written by the notary, under the dictation of the testator.

“They also avoided the holographic will”, which must be fully written by the testator’s hand. “They therefore chose the mystical will”, or “secret”, which can be given to the notary “closed, sealed and sealed”, as the following affair recalls.

When Maryse X, widow Y, without children, dies, in 2015, her brother and sister discover that the succession escapes them: by means of a mystical will, Maryse made his brother-in-law, Jean Y, The universal legatee of his property.

The “act of suspension” that the notary drawn up during his delivery, on July 31, 2014, indicates: “[she] presented a sheet contained in this PLI, that she declared to represent her will” . The latter being typed, she “said she personally checked the wording, by reading that [she] made it”. In short, everything would have happened in accordance with the procedure provided for by the Civil Code ( Article 976 ).

“Neither read, nor write, nor speak”

Now, on July 31, 2014, M ^{me x, suffering from a disease that made it blind, could no longer “read, or write, or speak”, as the certified, a week earlier, her attending physician and a psychiatrist, specifying that she was expressed by “grunts”. She was already under the protection of a legal representative.}

How could she have “read” and “check” the content of the will? The heirs assign Jean Y, in order to obtain the cancellation of this act, on the basis of Article 978 of the Civil Code, under which” those who do not know or cannot read may not make arrangements in the form of mystical will “.

October 12, 2022 ( 2022, 21-11.408 ), they obtain (finally) winning: the Court of Cassation validates the reasoning of the judges of the bottom, according to which M ^me x “could not read the will” – The Magistrates of the Nîmes Court of Appeal (Gard) who also noted that “no element of the act itself or the above-mentioned in the way in which Maryse X could have read it (magnifying lights magnifying or computer zoom or other) “. They judge that “in the absence of certainty on the expression of his last wishes”, the act “had to be canceled”.

The Court of Cassation also refuses to reclassify the mystical will as an international will, a new form of will that the states parties to the Washington Convention of October 26, 1973 are required to introduce into their internal legislation. This “rescue” is indeed possible only when the will is affected by a nullity of form, and not of a fundamental defect which doubts the will of the arrangement.

The heirs, who, moreover, had, in December 2015, filed a complaint for abuse of weakness, have just learned that the public prosecutor of Avignon (Vaucluse) requested the dismissal of Mr. Y and of an accomplice before a criminal court. But that the notary escapes the prosecution, for lack of “sufficient charges” towards him: before the investigating judge, he indicated that he had, in fact, “read [him]-even” the will, then asked Maryse S ‘ He expressed his last wishes well, and obtained an “yes no equivocal” … probably a groan?