Language barriers

When advising on cross-border estates, especially between France and the UK, one key element of will drafting is the language in which the will must be written. Is there an obligation for a French will to be written in French? What if the testator does not speak French but wrote a will in French, how can we be sure that the will reflects their testamentary intentions? Does the intervention of an interpreter affect the validity of the will?

Several recent cases in France, and a recent ‘rebellion’ from the Lyon Court of Appeal, demonstrate that while – at first glance – the answer might be obvious, there are actually several pitfalls to keep in mind to avoid a will being invalidated due to the language in which it was written.

In France, the starting point is the type of will. French law sets out three main types of will: the holographic (handwritten) will; the authentic will (dictated to a notaire who writes it down with the attendance and signature of witnesses); and the mystic will (a sealed will deposited with a notaire with a declaration from the testator). France (just like the UK) is also party to the Washington Convention that created a form of will called an international will.

Language in holographic wills: the recent addition of a language requirement

As far as holographic wills are concerned, the starting point is set out at Article 970 of the French Civil Code: it must be entirely handwritten, signed and dated by the testator, and the law is very clear that there are no other formal requirements. Therefore, there is (despite there still being some misunderstandings on this point) no requirement that a French holographic will is written in the French language, and indeed as far as a French holographic will written in English is concerned, this has been accepted by the French courts going as far back as the 1990s.

However, in a June 2021 case, the French Cour de Cassation (Supreme Court) has now made it another requirement that the testator must understand the language in which their will is written, otherwise the will may be declared invalid.

This case was particularly interesting due to the fact that the issue of understanding the contents of the will must have been taken into consideration, and indeed the testator had relied on a ‘translation’ of the French will, this one written (but not by the testator) in the language he spoke, German, to, it is assumed, aid in his understanding of the French will written in French. Something which, until this court decision, was accepted good practice.

In this case, the Court of Appeal noted that despite the differences in language, the two documents did not contradict each other. The differences between the two documents did not affect the substance of the will, which left a share of the estate to the deceased’s sister (while still complying with forced heirship provisions). The Court of Appeal therefore upheld the French will (contested by the deceased’s children, no doubt hoping to revert to intestacy provisions where the sister would not inherit), on the basis that the testator’s consent to the contents of his will was not affected by the fact that he did not actually understand the language of his own will. But by an escalating appeal to the Cour de Cassation, it was ruled, by reference to article 970 of the French Civil Code and without much detail as to the reasoning, that as it was established that the testator did not speak French it followed that the will was not valid.

Language in authentic wills: strict requirements as to the language

The position is even trickier when an authentic will is involved, as it is French law than an authentic deed must always be written in French. What is the solution if the testator cannot make a holographic will (if they have a condition which affects their ability to handwrite or are unable to write at all) but also does not speak French?

Until 2015, the only solution was to find notaire(s) and witnesses who also spoke the testator’s language, as well as French. The notaire would then type or handwrite the contents of the will in French but as dictated by the testator in their mother tongue, which was a tall order especially for languages less common than English. In 2015, a new article was added to the French Civil Code which allowed the option of having an interpreter present to translate the testator’s wishes to the notaire(s) for them to write down in French. However, the interpreter must be registered as a sworn expert with one of the French Courts of Appeal.

With such technical requirements, it’s perhaps unsurprising that a failure to carefully check the law would lead to non-sworn interpreters being instructed and, in the event of litigation, the validity of the authentic will being contested.

And this is exactly what happened in the matter that was ruled on by the Cour de Cassation in 2022, and most recently reheard by the Lyon Court of Appeal, which brought into focus languages in international wills.

A solution to be found in international wills?

Requalifying an authentic will as an international will is not a new line of argument in France. Indeed, it has been used previously to attempt to save an authentic will which did not meet all if its formal requirements, under the French doctrine of réduction, as the formal requirements for international wills set out in the Washington Convention are slightly more relaxed.

This particular case concerned an ‘authentic’ French will which was dictated to the notaire in Italian, using the services of a non-sworn interpreter, for the notaire to write out in French. When the case was first sent to the Cour de Cassation to rule on, their judgment set out that this will could not be considered a valid international will either, as Article 4 of the Washington Convention states that: “the testator shall declare in the presence of two witnesses and of a person authorised to act in connection with international wills that the document is his will and that he knows the contents thereof.”

According to the Cour de Cassation, if you are not able to understand your own will when you read it, how can you declare that you know the contents of it? As such the Cour de Cassation ruled that the will, initially planned to be in the authentic form, and therefore written in French, a language that the testator did not speak, did not meet the requirements to be an international will either, despite an interpreter being involved.

Similar arguments were made by the Cour de Cassation in relation to a mystic will, when it was established that the testator could not read and therefore was unable to declare that he knew the contents of his will.

The matter was kicked back to the Court of Appeal of Lyon to rule again on the substantive litigation. The court made the decision to keep in line with its initially appealed ruling, that the non-valid authentic will was a valid international will, as the Washington Convention:

• does not expressly forbid that the testator uses the services of an interpreter to write their will; and
• actually makes some provisions relating to using the services of an interpreter.

Therefore, it follows that as using an interpreter was in the contemplation of the signatories to the Washington Convention, it should be accepted that using an interpreter is allowed and does not preclude as to the validity of the international will.

It is expected that the matter will be referred back to the Cour de Cassation for a final ruling on this issue. While it is commendable from the Court of Appeal of Lyon to attempt to save the validity of the will (it is very disappointing to think that the wishes of the testator will not be upheld because nobody, and especially their legal advisers which they were entitled to rely on, checked the law back to see whether there were specific requirements on the qualifications of the interpreter), this saga truly highlights how important formal requirements are. It is also important to note that, while national laws do not always make reference to the issue of language, it must still always be considered, and considered carefully for technical requirements, and to keep in mind what seems to be the key – that the testator needs to be able to understand the contents of their will. For as far as France is concerned at least, this is not only an understanding at the time they are writing or dictating their will, but actually the additional ability to be able to read their will back and understand and approve the contents of it then.