In an Interpretative Resolution of January 21, 2025, the Supreme Court of Cassation (SCC) resolved the following much disputed issue: whether a will is null and void if made due to care already provided to the testator, as well as future care that will be provided to the testator until the end of his or her life.
In the Resolution, the SCC holds that a will made exchange of care provided to the testator before the will was made, as well as with regard to future care to be provided to the testator until the end of his or her life, is not void under Art. 42, letter (c) of the Inheritance Act. In such cases, when interpreting the testator’s intentions, it cannot be assumed that the sole motive for making the will is one that contradicts the law due to a violation of the principle of gratuity in testamentary dispositions.
The Court justified its Resolution by holding that the testator’s gratitude should not be seen as providing a material equivalent to the person who cared for the testator but rather should be evaluated as a motive for making the will.
In the case of a will, the motive – the reason that led the testator to make the will – forms the basis for these transactions. Motives can vary to express gratitude, to deliver justice, etc. The SCC holds that a will can only be deemed void if the motive contradicts the law, public order, or good morals. The motive for gratitude and the expectation of future care and good treatment does not constitute such a motive.
This is because the expectation does not create a right for the testator to demand actual performance. Furthermore, if the expectation is not fulfilled, the testator can always revoke the will.
On the other hand, a will is a gratuitous transaction – there is no exchange of benefits between two parties, only one party provides a benefit. Therefore, the testator cannot bind by his or her statement another person without that person having expressed a will to be bound. Therefore, a will does not bind the person in whose favour it is made, nor does it limit that person’s freedom.
Therefore, the SCC holds that when, in addition to expressing gratitude for the care already provided, a will also reflects the expectation that such care will continue in the future, this does not mean that the will is of a gratuitous nature or that it contradicts the law. Consequently, such a will be not null and void under Art. 42, letter (c) of the Inheritance Act.
You can read the whole Resolution here.
