Testamentary revocation is of public order; its principle is stated in article 895 of the French civil code. A will can therefore freely be revoked by its testator. This right being discretionary, it cannot be considered abusive.
The revocation can be voluntary or judicial.
1) Voluntary revocation of the will:
A testator can voluntarily revoke his will.
He possesses two means to carry this out expressly according to article 1035 of the French civil code:
- The testator can draft a new will in which he has to insert an express provision revoking the preceding will.
This type of revocation is especially used with holographic wills (“testament holographe”). To ensure the validity of the new will, the testator has to ensure the fulfillment of the validity conditions pertaining to holographic wills: they must be entirely handwritten, dated and signed.
If minor changes are envisaged, the testator can enclose a codicil on a separate document that he must date and sign.
- The revocation can also be made in front of a notary that will draft a notarial deed declaring the change of will. It can however only be done in the presence of two notaries or of one notary attended by two witnesses.
It is important to note that there exists no parallelism of form between the wills. A will by public instrument (“testament authentique”) can be revoked by a holographic will and inversely.
Tacit revocations are accepted and arise in three cases:
- Article 1036 of the French civil code provides that the latter can result from the drafting of a new will that contradicts the provisions of the preceding will. In this case, the revocation will tacitly be presumed, only the incompatible provisions between both acts will be void by the new will;
- The transfer of a bequested asset tacitly presumes a revocation of the will (article 1038 of the French civil code). This presumption is only applicable to bequests (“legs particuliers”) of ascertained assets and not to those concerning a category of assets. For example, the sale of a real estate asset contained in a bequest prior to the death of the testator will be equivalent to the bequest’s revocation as expressed in the will;
- Finally, the destruction of the testament will imply revocation. It will essentially be applicable to holographic wills. This testament will however have to entirely be destroyed in order for the presumption to be applicable.
2) Judicial revocation of the will :
A testamentary revocation can be carried out judicially; this specifically applies to gifts (“donations”).
Article 1046 of the French civil code specifies the different causes of judicial revocation for gifts:
- The non-performance of charges can justify an action in revocation of a bequest (article 954 of the French civil code). The action will have to be carried out in front of the Court of first instance (‘Tribunal de grande instance”) by the heirs if the legatee does not execute the stipulated charge.
- Ingratitude can also allow judicial revocation (article 955 of the French civil code). It takes effect in three of the following situations: if the beneficiary (“donataire”) has undermined the life of the donator, if he is guilty of abuse, offences or serious assaults towards the latter or if he refused to give him alimony (“aliments”);
- An action in revocation can be carried out in the event of serious violation to the memory of the testator according to article 1047 of the French civil code.
Maître Frédéric Michel – Fairfield Law firm | Lawyer in Cannes