When we feel that the end of our lives is near, or when we anticipate it, it's customary to formulate wishes about what will happen to our remains, about the funeral arrangements and about the distribution of assets acquired throughout our lives. Just like all our civil actions, the act of disposition mortis causa is provided for and regulated by law.
The distinction between a simple wish and a disposition mortis causa lies in the sanctions reserved for both. A wish, like a promise, when it is not formalized, can have no legal effects or constraints, whereas a disposition for the cause of death, commonly known as a "disposition pour cause de mort", can have no legal effects or constraints. wills, last wishes, end-of-life directives or advance directives, can lead to criminal sanctions if they are not respected.
The French Civil Code is very clear on this point: Article 16 stipulates that "the dignity and integrity of any person" must not be violated. This law applies to the living as well as to the dead, whether as a body (burial) or reduced to ashes (cremation).
This principle is the legal basis for the penalties for failure to respect a deceased person's last wishes.
⚠️ Failure to respect a deceased person's wishes (will, last will and testament, etc.) has consequences and may lead to penal sanctions.
1. What are the penalties for breaking a will?
A will is a written document in which a person expresses his or her wishes.especially after his death.
More specifically, the purpose of a will may be, for example :
- pass on your assets after your death and decide how to distribute them among your beneficiaries,
- appoint a person to carry out his or her last wishes (called an executor),
- indicate his or her wishes concerning his or her body (consent to organ donation, funeral arrangements, cremation, etc.),
- to appoint a guardian for his or her children,
- to recognize a child.
The law provides for penalties for anyone responsible for deliberately disregarding a will!
Article 4 of the law of November 15, 1887 on the freedom of funerals states that :
"In the event of a dispute over the conditions of the funeral, a decision is taken, within one day, on the summons of the most diligent party, by the justice of the peace of the place of death, unless an appeal is lodged with the president of the civil court of the district, who must take a decision within twenty-four hours. The decision is notified to the mayor, who is responsible for its execution. The present law does not restrict the powers of mayors with regard to measures to be taken in the interests of public health.
Failure to draw up a will can have far-reaching consequences for the deceased, the heirs, the family and the person responsible.
First of all, actions for nullity can be brought before the courts concerning the legal or intestate devolution (without a will) of the estate of a deceased person who had written a will.
Beneficiaries of the will also have the right to take legal action to force the execution of testamentary dispositions, and civil and criminal actions may be considered in the event of deliberate breach.
On the other hand, any person responsible for deliberately disregarding the will may be held civilly liable, with the possibility of claims for damages. In addition, an executor acting against the will and the interests of the estate may be disqualified from office.
2. Funeral wishes must be respected. How does the law protect you?
Article 3 of the law of 1887 stipulates that :
"Any adult or emancipated minor who is in a position to make a testamentary disposition may determine the conditions of his or her funeral, in particular as regards the civil or religious character to be given to it and the mode of burial. [...]"
The choice of burial method, coffin, urn, body care, wake, committal and ceremony itself is left to the individuals concerned.
Ordinance no. 2000-916 of September 19, 2000 - art. 3 (V) JORF September 22, 2000, which came into force on January 1ᵉʳ, 2002, and is reproduced in article 433-21-1 of the French Penal Code, provides that.
"any person who gives the funeral a character contrary to the wishes of the deceased, while having knowledge thereof, shall be punished: by 6 months' imprisonment; by a fine of €7,500."
3. Will your advance directives be respected? What does the law say?
What are advance directives? An a written declaration of your wishes regarding the end of your life.
Advance directives allow you to make known in advance your wishes regarding the end of your life in the event that you are no longer able to express your wishes. For example, following a coma, profound cognitive impairment, an accident, the progression of a disease or old age.
Directives are not intended to be used if you are capable of expressing your wishes.
These directives express your wishes concerning the conditions for continuing, limiting, stopping or refusing medical treatment or procedures.. It helps doctors, when the time comes, to make decisions about your care if you are no longer able to express your wishes (for example, because of a serious illness).
Article R4127-37-2 of the French Public Health Code states:
"The decision to limit or stop treatment respects the patient's wishes previously expressed in advance directives. When the patient is incapable of expressing his or her wishes, the decision to limit or stop the treatment provided, as a refusal of unreasonable obstinacy, can only be taken at the end of the collegial procedure provided for in article L. 1110-5-1 and in compliance with the advance directives and, in their absence, after the testimony of the wishes expressed by the patient has been obtained from the trusted support person or, failing this, from the family or a close relative."
4. The risks of disrespecting the memory and dignity of the deceased
The legal provisions governing freedom of the press are strict with regard to defamation of deceased persons, considered an offence against the memory of the deceased. These rules are explicitly set out in Articles 31, 32 and 33, which deal specifically with defamation and insult. In the event of infringement, the perpetrator is liable to financial penalties, with a fine of up to 12,000 euros.
Article 34 of the law of July 29, 1881 particularly intervenes by sanctioning :
"defamations or insults directed against the memory of the dead".
One notable aspect is that heirs have the right to take legal action against the authorprovided that :
"the authors of these defamations or insults would have intended to harm the honour or consideration of the living heirs, spouses or universal legatees.
This proven intention is crucial for the exercise of the right of legal action by living heirs, spouses or universal legatees (CA Versailles, January 10, 2023, no. 2°/05069).
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