Reader question: My wife died without leaving a French will, but I believe we entered an en tontine clause into our French property purchase some 16 years ago. I am a UK resident. I would like, however, to have the succession of the property dealt with under usual French succession law, and the en tontine clause (if it exists) to be ignored so that my two sons jointly inherit with me. Is this possible and what would the charges be?
The inclusion of a tontine clause means the property must pass outside of the usual succession process. A tontine clause presumes the first to die of two joint owners of a property is deemed never to have had any interest in it, and the survivor is treated as sole owner from the start.
If there is a tontine clause, it cannot be disregarded. The property would pass to you, irrespective of any will your wife might have had.
It is possible to dissolve a tontine clause, but only with the express agreement of both parties – while they are alive and of full capacity. It would be prudent to ask a lawyer with knowledge of French law to inspect the title documentation to establish if the property was indeed bought en tontine.
If not, it might be possible for your late wife’s share to pass in part to your children.
In that situation, it would still be important to understand if she prepared a will at all. You mentioned she had not written a French will, but an English will might still come into play. If there is no will, then the application of the rules of intestacy would need to be considered.
Even if there is a tontine clause, it should be possible to restructure the ownership to include the two boys (for tax purposes, it will be important that they are your natural children, rather than stepchildren). When asking the notaire to update the title deed, you could gift some to your sons. Consider the various tax and cost implications that might arise – even in the UK if you are UK tax-resident. Expert advice should be sought.
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