Will Challenged for Formal Defect: What to Do After Death?

Imagine: you live in Beaune, and your uncle, a renowned winemaker, bequeaths his vineyard to you by holographic will. But upon opening, surprise: the document is not dated, or the signature is dubious. The other heirs cry scandal, and you find yourself before the court. I have seen this situation dozens of times in my practice. The question that haunts every owner: can a mere formal defect really invalidate a will? The answer is yes, as a recent decision of the Lille Judicial Court reminds us.

On 15 November 2024, the judges in Lille confirmed that a will can be contested and annulled if it does not comply with legal formalities. For the uninitiated, inheritance law may seem rigid: a missing comma, and everything collapses. Yet this rigour makes sense: it protects the true intention of the deceased and prevents forgeries. In this decision, the court unsurprisingly applies the rules of the Civil Code, but it forcefully reminds that the judge cannot "repair" a poorly written will. So, concretely, what should you know if you are concerned by an inheritance in Chenôve or elsewhere? Read on.

The facts: a story that happens every day

Mr X, owner of a house in Beaune, writes a holographic will (written, dated and signed by his own hand) in 2020. He bequeaths all his property to his niece, Mrs Z, to the detriment of his two children. Upon his death in 2023, the niece presents the will to the notary's office. However, the document has an anomaly: the date is incomplete (only the month and year, not the day), and the ink of the signature appears different from that of the body of the text. The children immediately challenge the validity of the will.

The case is brought before the Lille Judicial Court. The claimants (the children) invoke a serious formal defect: lack of a certain date (complete date) and suspicious signature. They seek the annulment of the will and a return to the statutory succession (equal division between them). The defence (the niece) argues that the deceased's intention was clear and that the defect is minor; she produces affidavits from neighbours stating that Mr X was accustomed to writing carelessly.

The court, after graphological expert evidence, finds that the signature is indeed by the deceased's hand but that the date lacks precision. The judges recall that the date is a mandatory requirement for a holographic will: without it, one cannot verify whether the testator was of sound mind at the time of writing, nor whether a later will would have revoked it. Result: the will is annulled for formal defect. The estate is therefore settled without a will, the children inheriting in equal shares.

The reasoning of the court — dissected

The court relies on Article 970 of the Civil Code, which imposes three formal conditions for a holographic will: to be entirely written, dated and signed by the hand of the testator (the person making the will). Each condition is substantive (essential): their absence results in the absolute nullity of the will. The judges recall that nullity for formal defect does not require proof of prejudice; it is incurred as soon as the formality is missing. This is known as nullity as of right (automatic).

In this case, the date was incomplete: only the month ("November 2020") appeared, without the day of the month. The court considers that this does not allow the will to be precisely situated in time, thus violating the requirement of a certain date. As for the signature, even if authentic, the defect of the date alone suffices to annul the instrument. The judges dismiss the argument of the deceased's clear intention: "one cannot supplement a will that has not complied with the formalities prescribed by law," they say in substance.

This decision is not a surprise: it is consistent with constant case law of the Court of Cassation. Since a 2018 judgment (Civ. 1st, 10 October 2018), the courts have been very strict on the complete date (month and day); the year alone is insufficient. The originality here lies in the firmness of the court in the face of the attempt to save the will by extrinsic evidence (external, such as affidavits). The judges recall that the will must be self-sufficient.

What this changes for you — concretely

For testators (those who write a will), this decision is a warning: be meticulous! An oversight or imprecision can nullify your last wishes. Concretely, you must:

• Write the will in your own hand, with a complete date (day, month, year) and a legible signature.
• Avoid crossings-out or erased words, which could raise suspicions.
• If you are not certain of the form, prefer a notarial will (before a notary): more costly, but unassailable as to form.

For heirs: if you discover a will that disinherits you, check the formalities. In Chenôve, a client recently saved his inheritance by noting that the date was missing from his father's will. He contested and obtained annulment, going from 0% to 50% of the estate. Conversely, if you are a legatee (beneficiary of the will), be prepared to defend the validity of the instrument. A formal defect can deprive you of everything.

As regards time limits: you have 5 years from the opening of the will (or its discovery) to bring an action for nullity. After this period, the will becomes unchallengeable. Legal costs vary: expect €2,000 to €5,000 for proceedings, plus lawyer's fees. But if successful, the costs may be borne by the losing party.

Four tips to avoid this type of dispute

• Tip No 1 – Have your will reviewed by a notary before your death. A notary will check the form and advise on drafting. Even if the will remains holographic, an expert eye avoids errors.
• Tip No 2 – Keep the will in a safe place and inform your relatives. Avoid overly secret hiding places. Better: deposit it with a notary (against a receipt). This prevents loss or destruction.
• Tip No 3 – If in doubt about your mental capacity, have a doctor certify your condition at the time of writing. A medical certificate can prevent a challenge based on unsoundness of mind.
• Tip No 4 – If you are an heir and suspect a defect, do not sign any deed of partition before consulting a lawyer. A signature may amount to acceptance and make the challenge more difficult.

Further insight: related case law and developments

The Lille decision fits into a strict line of authority. Already in 2018, the Court of Cassation annulled a will for lack of date (Civ. 1st, 10 Oct. 2018, No. 17-25.124). More recently, in 2022, the Paris Court of Appeal invalidated a will whose date was in figures and not in words, considering the risk of falsification too great. The trend is therefore clear: the courts favour legal certainty over the deceased's intention when the form is not rigorous.

However, a recent development deserves attention: the draft law to simplify inheritance law (currently under discussion) proposes to relax the rules for holographic wills, in particular by accepting extrinsic proof of the date. But for now, this is not in force. The courts continue to apply the strict rule.

In practice, this means that families must be extra cautious. The advice: never write a will alone without consulting a professional, even for a simple legacy.

Frequently asked questions

1. Can I challenge a will if the date is simply incomplete (e.g., just the year)? Yes, that is exactly the case here. The absence of a precise day renders the will void. You must act within 5 years.
2. What should I do if I discover a suspicious will after death? Do not destroy anything. Photograph the document and consult a lawyer specialising in inheritance law to assess the chances of annulment.
3. Can a notarial will be challenged for formal defect? More rarely, because the notary ensures compliance with formalities. But possible if the will was not read to the testator or if a required witness was absent.
4. How much does an action for nullity cost? Lawyer's fees and graphological expert evidence vary between €3,000 and €8,000. The proceedings last on average 12 to 18 months.
5. Is there a risk that the judge will "save" the will despite the defect? No, in civil law, nullity for formal defect is automatic. The judge cannot decide that the defect is minor.

Are you in a similar situation? A first 30-minute consultation with Maître Perucca (€45) can save you months of proceedings — and often much more. Book an appointment →