Property Donation: When a Scratched-Out Clause in a Notarial Deed Changes Everything

You are a property owner in Borgo and wish to give a property to your children. The notary prepares the deed, but at the time of signing, you notice an error: a clause provides for a reserved life interest (usufruct) which you no longer want. The notary crosses out the words, initials them, and everyone signs. Can this crossing-out, years later, cause the donation to be invalidated?

This is exactly the question that arose in a case decided by the French Supreme Court on 16 March 1982. And the answer is reassuring, provided the formalities are complied with. Let's delve into this decision.

The Court held that words crossed out and counted, initialled by the notary and the parties, do not constitute a prohibited addition under Article 16 of the Law of 25 Ventôse Year XI, even if uncrossed words, such as "full ownership", appear at the end of a line. The essential point is that the correction does not fraudulently alter the meaning of the deed.

The facts: an everyday occurrence

Mr X, owner of a building in Furiani, decides to give it to his son and daughter-in-law. He goes to a notary who prepares a standard deed. In the typed text, a clause provides for a reserved life interest in favour of Mr X and his wife. But at the time of signing, Mr X changes his mind: he wants to give full ownership, without any reservation. The notary crosses out the words concerning the life interest, counts the crossed-out words (7 words), notes this number at the end of the deed, and has all signatories initial the correction. The deed is signed.

Years later, a dispute arises between the donees (those who receive) and the heirs. The latter challenge the validity of the donation, arguing that the crossings-out and the words "full ownership" appearing at the end of a line constitute prohibited additions under the law. According to Article 16 of the Law of 25 Ventôse Year XI (governing the form of notarial deeds), additions and interlineations must be approved by the notary and the parties, on pain of nullity.

The case goes before the Bastia Court of Appeal, which upholds the donation. The challengers appeal to the Supreme Court. The Supreme Court dismisses their appeal in 1982, confirming that the formalities had been complied with and that the words "full ownership" were not a prohibited addition, as they did not alter the meaning of the donation (the donation necessarily related to full ownership after the removal of the reserved life interest).

The court's reasoning — explained

The Supreme Court examined two points: the regularity of the crossings-out and the absence of a prohibited addition.

On the crossings-out, the judges recalled that Article 16 of the Law of 25 Ventôse Year XI requires that crossed-out words be counted and their number mentioned at the end of the deed, with initials of the notary and the parties. In this case, everything had been done correctly. The crossing-out was therefore not a ground for nullity.

On the second point, the challengers argued that the words "full ownership" appeared at the end of a line without having been approved as an addition. The Court held that these words were not useful to the meaning of the liberal disposition: since the reserved life interest had been removed, the donation necessarily related to full ownership. These words were therefore superfluous and did not constitute a prohibited addition. In other words, a correction that does not change the substance of the deed can be tolerated, even if not perfectly formalised, provided the parties' intention is clear.

This decision is part of a consistent line of case law that favours ascertaining the true intention of the parties over rigid formalism, as long as the essential rules are respected. It confirms that notaries have some flexibility to correct material errors, but that counting and initialling crossings-out remain mandatory.

What to take away? The judges showed pragmatism. Rather than annulling a donation for a minor formality, they upheld the deed because the correction was transparent and deceived no one.

What this means for you — practically

If you are a property owner considering a donation, this decision reassures you: a properly made crossing-out does not invalidate the deed. But attention, the formalities must be scrupulously observed.

Take a concrete example. You own a flat in Furiani that you want to give to your nephew. The notary prepares the deed with a reserved life interest clause. On the day of signing, you decide to give the bare ownership (without life interest). The notary crosses out the words, counts them (8 words), notes the number at the end of the deed, and you initial. Everything is in order. Years later, another heir challenges the donation. Thanks to the 1982 decision, the donation will be upheld if the formalities are proven.

For a tenant, this decision has less direct impact, but it reminds that ownership can be split (life interest / bare ownership) and that donations often cause disputes. If you rent a property whose owner is a life tenant, be aware that the bare owner also has rights.

For a buyer, be vigilant: if you buy a property that has been the subject of a donation, check that the notarial deed is regular. A poorly formalised crossing-out could be challenged and lead to legal costs.

In practice, if you are in a similar situation, you should keep all notarial deeds and, if in doubt, consult a solicitor specialising in property law. The time limit to challenge a donation is generally 5 years from the discovery of the defect.

Four tips to avoid this type of dispute

• Check the deed before signing: Read each clause carefully. If you want to change a detail, ask the notary to redraft the deed rather than crossing out. This avoids any later challenge.
• Insist that crossings-out be counted and initialled: If a correction is necessary, ensure the notary counts the crossed-out words, notes the number at the end of the deed, and that you and the other signatories initial next to the crossing-out and at the end of the deed.
• Keep a copy of the deed and drafts: Keep all preparatory documents. In case of dispute, they can prove the parties' initial intention.
• Engage a solicitor for complex donations: If the donation includes special clauses (life interest, reversibility, charges), a specialist solicitor can advise and draft a tailor-made deed, reducing the risk of nullity.

Further reading: related case law and developments

This 1982 decision is part of a series of rulings that relax the formalism of notarial deeds. For example, a Supreme Court decision of 2 June 1993 (no. 91-20.847) upheld a donation where an entire line had been added in the margin, as long as the addition had been approved by the parties. Conversely, a decision of 10 December 1996 (no. 95-10.000) annulled a deed where crossings-out had not been counted, even though the correction was minor.

The trend of the courts is clear: formalism is required, but judges primarily seek the true intention of the parties. If the correction is transparent and does not alter the substance of the deed, it will often be upheld. However, caution remains advisable: prevention is better than cure.

For the future, with the dematerialisation of notarial deeds, the issue of physical crossings-out is less relevant. But typing errors or corrections in electronic deeds may raise similar problems. Judges will need to adapt to these new media.

Frequently asked questions

1. Does an uncounted crossing-out automatically render the donation void? Yes, according to case law, the failure to count crossed-out words can lead to nullity of the deed for a formal defect. It is therefore imperative that the notary respects this formality.
2. Can I challenge a donation made 10 years ago because of a crossing-out? The action for nullity for a formal defect is time-barred after 5 years from the discovery of the defect. Once this period has expired, you can no longer act. Consult a solicitor promptly.
3. What is the cost of having a donation annulled? Legal costs vary: solicitor's fees (€1,500 to €5,000 depending on complexity), expert fees, etc. Mediation may be less expensive.
4. What should I do if I discover a suspicious crossing-out in a notarial deed? Contact a solicitor specialising in property law immediately. They can analyse the deed and advise you on possible remedies.
5. Is the notary liable if a crossing-out is poorly made? Yes, the notary may be held professionally liable for failing to fulfil their obligations. You can claim damages.

Do you find yourself in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) may save you months of litigation — and often much more. Book an appointment →