Types of Wills: Official, Holographic and Oral

TMK arts.532-537 govern the official will. It is drawn up by a notary, a judge of the Civil Court of Peace or another official empowered by law, with the participation of two witnesses. The testator's wishes are reduced to writing by the official, read and signed by the testator, and dated and signed by the official.

Where the testator is unable to read or sign the will, a special procedure applies (TMK art.535): the official reads the will to the testator in the presence of the witnesses, and the testator confirms that it reflects his or her wishes; the witnesses then attest in writing that the declaration was made in their presence and that the testator had the requisite testamentary capacity.

Under TMK art.538, the holographic will must be entirely handwritten by the testator from beginning to end, with the date (year, month, day) and the signature also in the testator's hand. Wills typed on a computer, written in another person's handwriting, or undated will be annulled for non-compliance with form.

A holographic will may be deposited for safekeeping with a notary, a judge of the Civil Court of Peace or a competent official. After the testator's death, any person into whose hands it comes must deliver it without delay to the Civil Court of Peace (TMK art.595).

TMK arts.539-541 provide for the oral will as an extraordinary form of disposition. Where, due to extraordinary circumstances such as imminent risk of death, interrupted communications, illness or war, the testator is unable to make an official or holographic will, he or she may declare last wishes to two witnesses, charging them to record those wishes in writing, sign them and deliver them without delay to the judge of the Civil Court of Peace or of the Civil Court of First Instance.

The oral will is a measure of last resort; it lapses upon the expiry of one month from the moment when the testator regained the opportunity to make a will in one of the other prescribed forms (TMK art.541).

In inheritance disputes, the first step is to clarify the status of the heirs, the scope of the estate and any dispositions on death. Civil-registry records, certificates of inheritance, land-registry records, bank correspondence, the records of the opening of a will and any transfers made by the deceased during their lifetime should be reviewed together.

The time limits and types of action for matters such as reduction, testator collusion, renunciation of inheritance, annulment of a will and inheritance waiver differ from one another. Correctly identifying the date of knowledge, the opening of the estate, the opening of the will and the date of any renunciation declaration prevents the loss of rights.

Because intra-family transactions are often conducted without written documents, bank receipts, the values reflected in the deed, the testator's economic needs, witness accounts and patterns of actual use are particularly important. The earlier the evidence is prepared, the more soundly the legal framework of the dispute can be established.