ARTICLE
27 December 2024

Wills And Incapacity

CP
CMS Pasquier Ciulla Marquet Pastor & Svara

Contributor

CMS Monaco is a leading law firm, providing local and international clients with a one-stop shop service for all their legal challenges, both in counselling and litigation. The firm was created in 2009 and is strongly anchored in the Monegasque market and well familiar with its dynamic economy. In 2017 the firm joined CMS, an organisation of independent law firms, composed of 80+ offices in 45+ countries, with over 6,000 lawyers worldwide, making it the only law firm in Monaco with such significant international reach. Today CMS Monaco is composed of 80+ professionals, including five partners (Avocats Associés Monégasques) and over 50 associates, experts in Monegasque law. The firm is structured around seven practice groups: Private Clients, Business Law, Real Estate & Construction, Employment, Banking & Finance, Tax and Criminal law. The teams regularly work together on complex cross-practice cases with high stakes for a large variety of Monegasque and international clients, such as companies of various sect
However, when a person becomes incapacitated or loses their autonomy, the situation becomes more complex, especially if protective measures are put in place.
Monaco Family and Matrimonial

What precautions should you take ?

Drawing up a will to express your last wishes and organise the transfer of your estate is an important step.

However, when a person becomes incapacitated or loses their autonomy, the situation becomes more complex, especially if protective measures are put in place.

Vulnerable people need to be protected from outside pressures that could lead them to distribute their assets in a way that does not correspond to their true wishes.

In Monaco, there are two forms of protection that provide different levels of control over the actions of adults: curatorship and guardianship.

With regard to the specific case of the drafting of a will, an adult for whom a curatorship measure has been implemented may freely make a will, without any prior verification being necessary or any form being imposed.

Guardianship, on the other hand, lays down a relatively strict framework with regard to the drafting of wills.

According to article 410-27 of the Civil Code, an adult under guardianship may only make a will if:

  • He/she is in a condition to express a conscious and free will at the time of making the will
  • The authentic form is used

It must therefore be established that the person is actually capable of expressing his or her wishes validly, before any drafting is considered.

According to articles 410-1 et seq. of the Civil Code, if a mental disorder is established at the time the will is drawn up, even independently of any protective measures, the will may be declared null and void.

It is therefore essential to anticipate these situations and, if necessary, to consult a professional to take the appropriate measures, guarantee the validity of the will and prevent any subsequent challenge.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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