On 17 January 2025, the plenary session of the Court of Cassation ruled on the invalidity of international wills drawn up in French by a person who does not understand that language (Ass. Plénière. 17 Jan. 2025 pourvoi n°23-18823).

The Cour de cassation has overturned a decision of the Lyon Court of Appeal which had accepted the validity of an international will in a language not understood by the testator in the presence of an interpreter. This decision confirms a formalist approach to guaranteeing the protection of testamentary wishes.

The facts: a will in French, an Italian testatrix

A person of Italian nationality died in 2015 leaving a will drawn up in French in 2002. This will was received by a notary in the presence of two witnesses and with the assistance of a non-sworn interpreter. The testatrix had named her three daughters as legatees of the available portion. Her grandson challenged the validity of the will, arguing that the testatrix’s lack of knowledge of the French language and the absence of a sworn interpreter undermined the validity of the deed.

An annulment based on compliance with testamentary formalities

In its decision, the Cour de cassation ruled that :

1. At the time the disputed will was drawn up (2002), there was no provision in French law authorising the use of an interpreter for international wills.
2. The direct understanding of the language by the testator constitutes an essential guarantee to ensure the faithful expression of his wishes.

For the Cour de cassation, a will made in French by a person who did not speak that language could not be qualified as an international will.

Consequently, the Court annulled the decision of the Lyon Court of Appeal, which had validated the will as an international will.

What is an international will ?

The international will is a particular form of will introduced by the Washington Convention of 26 October 1973. This Convention was ratified by France and came into force on 1st December 1994. It aims to create a form of will which is recognised internationally, thus facilitating successions in a context of increasing mobility of persons and property.

The international will must comply with several formal conditions in order to be valid:

The will must be made in writing, but it is not necessary for it to be drawn up by the testator himself. It can be written in any language, by hand or by any other method (« The will must be made in writing. It is not necessarily written by the testator himself. It may be written in any language, by hand or by any other process »).

The testator must declare in the presence of two witnesses and a person authorised to act (in France, a notary) that the document is his will and that he knows its contents. He is not obliged to disclose the content of the will to the witnesses or to the authorised person.

‘The testator declares in the presence of two witnesses and a person authorised to act for that purpose that the document is his will and that he knows its contents. The testator is not obliged to inform the witnesses or the authorised person of the contents of the will.

In the presence of the witnesses and the authorised person, the testator signs the will or, if he has signed it previously, acknowledges and confirms the signature. If the testator is unable to sign, he must indicate the reason to the authorised person, who shall note this on the will.

The witnesses and the authorised person must then sign the will in the presence of the testator.

A strict interpretation,

The 17 January decision sets out the two possible interpretations in a pedagogical manner.

The first interpretation is based in particular on a previous decision of 2 March 2022 (Cass. 1e civ. 12-10-2022 n° 21-11.408) which had already established the principle that an international will had to be drawn up in a language understood by the testator, even in the presence of an interpreter.

‘ A first interpretation takes account of the fact that the Uniform Law, which the States parties are only obliged to incorporate into their domestic law, does not provide for the use of an interpreter.

This is the interpretation adopted by the Cour de Cassation in its aforementioned judgment of 2 March 2022, which held that, although an international will could be written in any language in order to facilitate the expression of the will of its author, it could not be written, even with the assistance of an interpreter, in a language which the testator did not understand.

This position, approved by some legal writers, is part of a trend in case-law which, interpreting formal rules in the light of their purpose, in this case to promote the freedom of the testator and respect for his wishes while ensuring the reality of his intentions, makes the validity of the will subject to the testator’s ability to verify its content personally (1re Civ, 9 June 2021, Appeal no. 19-21.770, published; 1st Civil Court, 12 October 2022, Appeal no. 21-11.408, published).

The second interpretation tends to admit the possibility of having recourse to an interpreter under the conditions required by the law by virtue of which the authorised person has been designated.

« A second interpretation derives from Article V.1 of the Convention the possibility of having recourse to an interpreter under the conditions required by the law under which the authorised person has been appointed.

It guarantees the legal security of wills made in the international form, by a person authorised by the law of another State party, in the presence of such an interpreter, and ensures, in a context of mobility of persons and internationalisation of assets, a harmonised application of the rules of the international will within the States which have ratified the Convention’.

The Cour de cassation adopted the second option and held that « the Uniform Law allows a will to be written in a language not understood by the testator provided that, in that case, the testator is assisted by an interpreter who meets the conditions required by the law under which the person authorised to act was appointed ’.

The Cour de cassation then noted that in French law Article 972 of the Civil Code, amended by a 2015 Law, authorises the use of an interpreter for authentic wills, provided that the interpreter is sworn.

As that reform came into force after the disputed will and does not apply to international wills, for which no comparable provision was introduced, it cannot therefore be extended to international wills predating that reform.

In the absence of such a legal provision, the Court of Appeal could not therefore validate a will drawn up in a language that the testator did not understand, even in the presence of an interpreter.

The Court of Appeal’s decision was therefore censured.

The Court of Cassation favours legal certainty.

While this position guarantees that the testator’s wishes will be carried out faithfully, it may be seen as a hindrance in a context of increasing internationalisation of assets. The judges’ wish remains to guarantee the security of the will in order to ensure that it corresponds to the wishes of its author.

Indeed, the Washington Convention was intended to simplify and unify testamentary formalities. However, the Court emphasised that this simplification should not be to the detriment of formal guarantees, such as the testator’s personal understanding of the language.

The Cour de cassation therefore seems to require that an authenticated will be used when the testator cannot express himself in French. Article 972 of the Civil Code then allows the notary to call on the services of a sworn translator who, according to the Law, guarantees the reliability of the record of the testator’s wishes.

It is therefore recommended for wills drawn up by non-French speakers to comply with the authentic form defined in articles 971 to 975 of the Civil Code, i.e.:

– A will received by two notaries or by a notary assisted by two witnesses

– a will dictated by the testator to the notary, who writes or types it, then reads it to the testator

– after reading, the will is signed by the testator, the notary or notaries and the witnesses present

– if the testator is unable to sign, he must declare this, and this impossibility must be mentioned in the deed.

– The deed must expressly state that all the required formalities have been completed.

– The authentic will is kept in minutes by the notary, which guarantees its durability and protection against any material destruction.

Olivier Vibert, Lawyer, Paris

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