Making a will by a protected person

To make a will, in particular a donation or a will, a person must be competent (Article 1108 of the Civil Code).

If a justice of the peace orders the administration of a person's goods, then this person is deemed to be incapable of making a will. This personal act is not subject to representation, which means that the administrator cannot take any action here either.

However, the justice of the peace may, at the request of the person placed under guardianship, grant authorisation to draw up a will (Article 905 of the Civil Code). It is then the justice of the peace who judges on the capacity of the protected person.

The Constitutional Court has already defined legal capacity as "....to assess the capacity to form a valid legal will in the light of the mental capacity".. Case law has decided, among other things, that a low IQ of the protected person does not necessarily exclude the presence of a free will, but that the protected person must not only have a necessary awareness of the meaning of a will, but also of the nature and scope of his estate. The assessment of the will's capacity will be based on the detailed medical certificate which must accompany the application and will be further verified during the compulsory hearing of the protected person by the justice of the peace (art. 1244, §2, Judicial Code).

Please note that if authorisation is subsequently granted by the justice of the peace for the drawing up of a will, this does not mean that the protected person is restored to his or her incapacity to testify. If a change needs to be made in the future, a new authorisation must be obtained.

The drawing up of a will in the case of an authorisation must always be done by authentic instrument (Article 905, third paragraph of the Civil Code). However, the person under administration does not have to submit a draft will to the justice of the peace, so that the latter will not be concerned by the wishes of the person under administration. The justice of the peace will therefore not judge the appropriateness of the intended legal act (authorisation of the administrator). in abstracto).

In order to draw up a grant, the justice of the peace will want to receive a draft of the grant (authorisation in concrete terms), as he or she can refuse the authorisation if the donation threatens to make the protected person or his or her maintenance creditors needy (Article 905, fifth paragraph of the Civil Code).

Finally, the notary will also judge at the time of execution of the deed whether the donor / testator is of sound mind. If you have any questions about this, do not hesitate to contact Stefan De Plus of our office: stefan.deplus@vsadvocaten.be

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