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Drafting a holographic will means setting out one’s last wishes entirely by hand, without involving a notary.
However, care must be taken: an incomplete date, or a date partly written by someone other than the testator, may result in the will being declared invalid.
What is a holographic will?
A holographic will is a will written entirely in the testator’s own handwriting, dated with the day, month and year on which it was drawn up, and signed by the testator (Article 970 of the French Civil Code). These requirements were introduced by the legislature to ensure that the will cannot be falsified.
Failure to comply with any one of the requirements of Article 970 may result in the will being declared invalid, particularly where it is undated.
Good to know: Other forms of will also exist, including the sealed will (testament mystique), the authentic will (testament authentique) and the international will.
In what circumstances can a holographic will be declared invalid?
A holographic will may be declared invalid:
• where the handwritten date is entirely absent, incomplete or illegible, if there is nothing in the will itself from which the date can be established (for example, a reference by the testator to a specific event);
• where the date is incorrect: the date stated must be consistent with the facts described in the will. If there is no evidence from which the correct date can be established, the will shall be declared invalid (French Court of cassation, First Civil Chamber, 11 February 2003, no. 99-12.626);
• where the date has been only partly written by the testator: this is treated in the same way as a complete absence of a date because a third party has intervened in relation to one of the essential elements of the instrument (Article 970 of the French Civil Code).
However, the French Court of Cassation has held that the courts must determine whether “elements intrinsic to the instrument […] potentially corroborated by extrinsic evidence” make it possible to establish that the will was drawn up during a specific period (French Court of Cassation, First Civil Chamber, 23 May 2024, no. 22-17.127);
• where part of the instrument was not written by the testator. However, where the will itself was written entirely by the testator, but a third party added certain particulars that are not required by law and are unrelated to the testator’s wishes, the will remains valid. For example, a third party may have added the testator’s address and date of birth (French Court of Cassation, First Civil Chamber, 30 September 2009, no. 08-15.007);
• where the testator’s signature is absent;
• where the will is typewritten.,
How can the risk of a holographic will being declared invalid be avoided?
- Consult a notary to obtain professional advice on drafting the will and complying with the required formalities.
- Ask a notary to draw up an authentic will (testament authentique): the testator dictates their wishes to the notary in the presence of two witnesses or another notary.