Reader question: My notaire has done a will electing UK law. Can I now destroy my old will, as it had no election of law in it? I want to leave everything to my spouse, and then to children.
I have seen a few very dangerous French wills recently, drafted by notaires, with the intention of electing English law.
They are surprisingly lengthy, but the only thing they do is make an election of English law. They do not, for example, state that they are NOT intended to revoke former wills, nor that they are to be complementary to them. They do not name beneficiaries; they do not name executors. They simply declare that this is the will of the deceased and elect English law.
Some that I have seen do actually revoke all former wills, elect English (or even “British”) law, but do not name any beneficiaries.
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If the will is valid, the election of law is valid. Unfortunately, if the will states that it revokes all former wills, then it leaves the estate intestate if beneficiaries are not named.
It is possible that the French will is silent on revocation. It might then be possible to claim it was not intended to revoke any parts of previous wills that do not contradict the new one.
However, it would cause huge confusion and could require court intervention to ascertain the true intention of the testator. At best, it would require an expert opinion prepared by a specialist lawyer to confirm the will’s intention and legal effect.
If intestacy laws apply, the order of people who inherit is similar under French and English law. In some cases, the inheritance the surviving spouse receives under English intestacy is even less favourable than under French law.
Not all notaires have done this, so do not panic. I would, however, suggest retaining your old will – at least until you have sought expert advice.
Author: John Kitching, French Law Consultancy. French Law Consultancy provides French legal advice
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