Homemade Wills: Are They Accepted in England & France?

Homemade Wills in England and Wales

Under English and Welsh law, there is no requirement that a Will should be drafted by a lawyer in order to be valid. It is, therefore, possible for someone to make their own Will, either by handwriting or typing it.

For a Will to be valid, it must meet certain legal requirements. A Will must be valid not only in form (eg how it is signed etc) but also in its content.

With regards to form, the Will must conform with the formalities set out in the Wills Act 1837. Broadly, the Will must be signed by the testator (the person who is making the Will) in the presence of two witnesses who then sign in the presence of the testator and of each other.

As for content, in English law, we have testamentary freedom; broadly speaking this means that everyone is free to leave their estate to whomever they wish under their Will. No one has an automatic right to inherit from another person, so there is no legal obligation to include close family members such as spouses and children in your Will. Having said that, certain family members may be entitled to claim from the estate if they are not included. This would, however, involve bringing a case to court; it is not an automatic right and there is no guarantee that the person bringing the court case would succeed.

A Will may also fail if the wording used is unclear, contradictory or ambiguous. Certain key provisions could be inadvertently left out, creating complications when the Will needs to be used. Such issues may not cross a non-professional’s mind, whereas they are part of the basic legal expertise that a solicitor would bring to the table.

Homemade Wills in France

In France, ‘holographic’ (handwritten) Wills are commonly used as an alternative to formal Wills prepared by a Notaire, referred to as ‘authentic’ Wills. Unlike authentic French Wills and English Wills, French holographic Wills do not require witnessing and must be handwritten (not typed), signed and dated by the testator.

As for content, if French law applies to your French assets, then you are not free to leave your French estate as you wish. French law protects children and, in some cases, spouses, and only the part of your estate that is not protected for them can pass under your Will. So, if you are married and have children, even a simple, basic Will leaving everything to your spouse would not be fully valid in France because your children are automatically entitled to a share of your estate.

It is possible to choose the law of your nationality to apply to your French estate. This requires including a specific clause in your French Will. However, this may not always be fully effective, depending on your circumstances, due to a recent change in French law.

Cross-border considerations

An English homemade Will covering worldwide assets may be valid in England under English law, but is it also valid in France and vice versa?

With regards to form, in most cases, validity is unlikely to be a problem. This is because both France and the UK are signatories to the 1961 Hague Convention on Testamentary Dispositions, which recognises a foreign Will as formally valid if it complies with the laws of the testator’s nationality, or domicile, or habitual residence, or the jurisdiction in which the testator owns immovable property or where they made their Will. As long as you meet at least one of these grounds, a valid English Will will be recognised as formally valid in France, and a valid French Will will be recognised as formally valid in the UK.

The content of the Will, however, may or may not be valid.

In summary, whilst it is indeed possible to write one’s own Will both in France and England & Wales, this is seldom advisable given the uncertainties and risks involved, especially with the added complexity that owning assets in more than one country involves.

Unfortunately, the issue with homemade Wills is that often, by the time any problems are discovered, it is too late. It is the loved ones left behind who will suffer the consequences of a badly drafted homemade Will, including not only the extra time and cost involved in resolving issues and administering your estate but, most importantly, the added stress this causes at an already difficult time. Badly drafted Wills can cause disagreement and disputes between beneficiaries if the terms are not clear and may also carry adverse tax consequences.

Having your Will drafted by a suitably qualified professional will provide peace of mind and ensure your loved ones are left with no nasty surprises.