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The actual intention to draw up a last will and testament as a ground for contesting a private will

The actual intention to draw up a last will and testament as a ground for contesting a private will



Ioannis Psarakis, Lecturer, LL.M (III), PhD Cand.

The issue: A will derives its validity from both objective and subjective elements. To put it differently, it must not only appear to be a will (i.e. it must essentially bear a handwriting, date and signature), but it must also be one: that is to say, the author must actually have intended it to be valid as such. Otherwise, if it is not a true will, it should not produce legal effects under it.


Article 1721 para. 1 of the Civil Code stipulates that 'A personal will shall be written in full in the testator's hand, dated and signed by him. The date shall indicate the day, month and year". The legislature therefore seems to be content, as a necessary minimum of the validity of a private will - which will often be preferred to a public will as inexpensive - with handwriting, date and signature. But the validity of a handwritten will, although it will bear all these necessary elements, is not ultimately an inviolable rule. 

Article 1721 para. 1 of the Civil Code stipulates that "A private will shall be written in full in the testator's hand, dated and signed by him. The date shall indicate the day, month and year. The legislature therefore seems to be content, as a necessary minimum of the validity of a private will - which will often be preferred to a public will as inexpensive - with handwriting, date and signature. But the validity of a handwritten will, although it will bear all these necessary elements, is not ultimately an inviolable rule. 

In other words, the validity of a handwritten will can be successfully challenged before the Court if it is indeed handwritten, truly and fully dated and signed by the testator, but it lacks an element which is not immediately apparent on the body of the will, but its existence is required in every will: it is the animus testandi, that is, the true, serious and definite will of the testator to make his will. A very simple explanation of where the requirement of the existence of animus testandi finds its basis is that only when a distribution of property as a will is valid when the author of the will really willed it to be valid as such when he made it, and also until the last moment of his life. But the deceased who drew up a will, for example, in jest, or in order to bring the will - while he was still alive - to the notice of his wife and to raise her spirits by finding that he was leaving all his property to her, cannot be said to have wished this document to determine the distribution of his estate after his death. The same will happen to the testator who draws up a will "tentatively", or with sloppiness and disorder, or to the one who draws up several wills of which he places in his drawer to think in the next days which one he will finally want to apply and which one he will want to eliminate, but in the meantime he dies suddenly, thus subordinating both the will drafts. 

The will of the individual, expressed while he was alive, should be respected after his death. This is, moreover, the meaning of the provisions of the will. In such cases, the indisputable fact of the date, signature and handwriting will not suffice to give validity to a handwritten will, since the will of the author was anything but to distribute his property in the manner indicated in the 'will' document, and therefore - since it reflects an untrue will - should not produce legal effects. 

Of course, whether someone is joking or not expressing seriousness should only be judged on a case-by-case basis and specifically by approaching the particular testator and evidence from his or her life. 


That is to say, the handwritten will written in Latin (i.e. in a language which, according to current thinking, is dead) of a retired philologist who was passionate about Latin, in which he used to express himself in life whenever the opportunity arose and when he was present before a suitable audience, would be more likely to be found by the Court to have animus testandi in it than any other person who chose to write a "testament" in Latin. 

But the sloppiness of the drafting of a will, its "image", which may be a serious indication of a lack of a true and serious intention to draft a will, will not be judged in the same way in every case. In other words, the disorderly writing and untidy appearance of a will will be an indication of lack of animus testandi or not, depending on the particular circumstances and specific circumstances of each particular case. 

It has been held, for example, that a written text resembles, for the most part, a draft will in view of the sloppiness with which it is written and its general lack of clarity, as well as the fact that the testator, as a former judicial officer, was aware of the legal framework and the elements constituting the validity of a private will. 

Indeed, the general appearance of a private will with serious flaws in its appearance gives the impression at first sight that the average person would not have formulated in this way the provision of his last will and testament which would determine what would happen to his property after his death. However, this is not a horizontal consideration and each case must be judged differently. What is decisive is whether the individual in question, on the basis of his knowledge, education, age and training, drafted a will in the best possible way that he could, in such a way that it can be inferred that - subject to the proportions and his education - he showed the seriousness that the average person of his level of society is expected to show in drafting his will. 


In other words, a lawyer, a lawyer who knows the law, and an elderly woman with little or no education and rudimentary transactional experience, is expected to draw up a will in one way, and an elderly woman with little or no education and rudimentary transactional experience is expected to draw up a will in another. Accordingly, accordingly, in order for the Court to conclude that the testator had no real intention of his particular creation being valid as a will (but only made it as a joke or as a draft which is not yet a complete will and this is betrayed by the "sketchiness" of its writing, but which degree of the drafting varies from person to person as we shall see below), it will take a lot more evidence for the uneducated elderly woman in the above example, while for the testator-lawyer only a few clues will suffice. 

One who writes his will sloppily and without diligence, without any exceptional reason to justify it (for example, a passenger on an airplane that is about to crash into the ground and who writes his will in agitation - so that it is justified not to easily make sense of his writing, as meaning and content - and in the midst of turbulence, so that the writing is justified to be disorderly) it is likely that he did not ultimately intend that document to be his will. That person is likely to be drafting a mere draft will, without serious intention of producing legal consequences from it: the average person will attempt to draft as perfectly as possible the document that will form his will. 

On the contrary, one who will draw up a draft will, as a "test" will, knowing that it is "addressed" only to himself and that it will not constitute his official will to be published and determine his property after death, will not show much care in the drafting of the document. For example, it has been judicially held that indications of a draft will (and therefore an invalid will) are as follows: " [...] not bearing a signature at the end of each of the other four pages thereof and at the end of this one, presenting a general impression of a draft deck as bearing mostly linear erasures (pp. 1, 3, 4, 5, 6, 7, 8), overwriting, undated and unsigned footnotes (pp. 2, 4, 7), incomprehensible linear footnotes in the text (pp. 6), incomplete verses, bearing only silences, question marks (last page), an unintelligible as incomplete provision (16/2) and a marginal valuation of the value of certain hereditary objects, it can be concluded, in view of the rules of common practice, that this is not a will in the sense of the regulation of the succession of the author of this document...'. 

Thus, in the case of a privately written will of an uneducated woman, the Court accepted animus testandi with the following reasoning, in line with our observations: 

"In this respect, the time when the will was drawn up, the social environment of the testator, his personal habits, his intellectual and social development, education, etc., must be taken into account. Furthermore, from the testimonies of the parties' witnesses, but above all, from the review of the aforementioned private will of 1 January 1980, it is clear that the testatrix did not have any particular knowledge of grammar and was therefore unable to grasp, even with a corresponding simplification, complex facts, but mainly legal concepts, in particular the terms 'vertical and horizontal property', and to formulate coherent thoughts and to draft readable and comprehensible written texts, using simple and understandable words and phrases of the established or customary, i.e. colloquial, dialect'. 

It becomes apparent, therefore, that the extent to which a person expressed himself, for his own purposes, seriously, will be judged on a case-by-case basis and in absolute dependence on how easy it was for that person to express himself in a non-sketchy script, to avoid repeated spelling mistakes and to observe elementary syntactical rules. An educated person is much easier to comply with the above, so accidental deviation should "trick" the judge, while an uneducated and elderly person without serious transactional experience will be justified in drafting a will with more flaws. 

But the educated-uneducated dichotomy will not always be the determining factor. That said: each case is judged individually, based on its particular characteristics. Therefore, an uneducated man, but one with a great deal of experience in business, social intercourse, diligent in his obligations and never careless in his conduct, may be expected to make a will of a similar form; otherwise, it is very likely that, in view of his own circumstances, he would not have meant it as such, in so far as the unjustifiable deviation from his usual conduct cannot be reasonably justified. For example, it was held in court that there was no genuine intention to make a will. which was crudely written, but by an uneducated man. On the basis of the educated-uneducated rule, one would think that the Court reached the wrong conclusion. 

However, the Court investigating further, and in particular taking into account what that man could do, whether he was diligent in his daily life and the care with which he settled the affairs concerning him, decided that if he really wanted to make a will, he would have drawn it up in a much more diligent manner, as was the habit of that man: 'The Court of Appeal then accepted that Mr B., although he did not have sufficient grammatical knowledge, had developed a great commercial activity. For decades he had run a grocery shop and a petrol station at Farsala Cross for decades until his death at the age of 68. In addition, with the help of his children, he operated a large estate of about 200 acres. He was an intelligent man and had the appropriate social - business experience, in fact many of his fellow villagers sought his input on various matters. He never did sloppy work and took great care to secure his claims. In order to make the donations of his fields to his sons Elias and A. unaffected for the time after his death, he preferred to draw up contracts of sale for them, while on 2.5.1960, in order to secure his claim against Athanasios B. for the amount of 1500 drachmas, he issued a bill of exchange of the same amount, which the latter accepted. In general, in his various transactions he made sure that documents were drawn up, as happened on 8.3.1971 when he drew up a receipt for 2500 drachmas, in the case when, as a proxy of Alex Frangopoulou, he sold to Ath. Karvounis a two-wheeled platform, and he kept individual books for the customers of his grocery store, who bought various items on credit. Also in his shop, located in the centre of the village, he sold reference adhesives and stationery, and in any case it was easy for him to obtain such paper from the kiosk about ten metres from his shop. Mr B. died of a myocardial infarction while receiving supplies for the petrol station he kept, and until his death his physical and mental powers were at their peak, never having been in an emergency and urgent situation. From all of the above, the Court of Appeal concluded that the author of the disputed document, C.B., did not have a significant and serious intention to dispose of his property after his death by means of it, that is to say, to make it his will (ANIMUS TESTANDI), without excluding the formulation of some thoughts or the drawing up of some plan regarding a will, which he intended to draw up in the future. In support of this judgment, the Court of Appeal (in the form of arguments) also made the considerations that I) if Mr B. had intended to make a will, he would have used the term 'Will' with which he was familiar and not the heading 'deed of testament' indicative of a purpose foreign to the last will and testament provision; 2) he would have given the above document a similar content, since he had the requisite transactional experience and knowledge, but also time comfort, and even would not proceed to its drafting with such sloppiness, carelessness and study, given that in his much less important actions of everyday life he was distinguished for his order, consistency and diligence, and even would not write the text sloppily on the outside of the envelope'.

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