August 2026: Experts provide analysis

CRIDON of the north-east

David Boulanger, lecturer in law at the Université d’Artois and director of the CRIDON Nord-Est and of the Lille notaires’ training centre (INFN) considers that the French government’s clarifications are sufficient for notaires not to apply article 913, line 3 [the 2021 rules] if English law or a comparable law with ‘family provisions’ rules, is set to govern the inheritance.

The role of the CRIDONs, of which there are five, is to provide technical legal help and training to notaires, especially on complex issues, including those of an international nature.

We asked him: “Given your analysis of the situation, and the role of the CRIDONs, what would you say if a notaire were to say to you: “I have an British client living in Lorraine whose English husband has just passed away, leaving her his entire estate in a will in which he chose English law to govern his succession, despite the fact that they have two adult children in the UK – should I contact the children to suggest they might claim compensation from the assets in France?’

He replied: “I would tell the notaire that the compensatory deduction under Article 913, paragraph 3, of the French civil code does not apply. Furthermore, it seems to me that English law does not require the children to be informed; consequently, in my view, the solicitor is not under any such obligation either. Only the wife is involved. Of course, a notaire who knows that a child is considering making a claim must remain cautious.”

In an article for professionals, Mr Boulanger referred to the possibility that some notaires may have to refer their clients to court.

We asked him about this and he said: “I am referring to cases where article 913 applies due to the content of the foreign law, or even cases where the notaire has doubts, but the parties concerned – such as the surviving spouse and the children – cannot agree; for example, with the children claiming the compensatory payment and the wife arguing, for example, that they are not entitled to it, or they are unable to agree on the amount of the compensation.

“The notaire is not a judge; he or she must therefore invite the parties to bring the matter before a court.”

He said he was not referring to situations such as where English law will apply, where, as stated above, he takes the view that notaires may be confident to not inform children of a right to a compensatory levy.

He said it would be difficult, at least in the short term, for the CRIDONs, or the Conseil supérieur du notariat [notaires’ professional body], or the justice ministry, to provide a full list of which countries’ laws are sufficiently protective of children, and which are not, though it is possible to make suppositions.

We stated that, as well as English and Welsh law (explicitly mentioned by the French authorities), we would assume the following to be acceptable either because they contain rules identical or very similar to family provisions, or other rules that can be interpreted as protective of children’s rights: the laws of Scotland, Northern Ireland, Ireland, Australia, New Zealand and the nine Canadian provinces that have systems based on ‘common law’.

Mr Boulanger said that in principle, he agrees.

However, the situation presupposes now that notaires be able to decide regarding every legal system in the world. 

“This is a major undertaking in comparative law,” he said.

In view of the complications remaining for notaires, Mr Boulanger hopes France will rather consider repealing the 2021 law.

Hélène Péroz, Professor of private law and criminal sciences at the law department of Université de Nantes

Prof Péroz has written publicly of her disappointment in the European Commission’s acceptance of the French government’s explanations.

She told The Connexion it leaves notaires in a complex situation having to potentially analyse many foreign laws to see if they contain something comparable, which is not normally part of their job. 

She points out that only English (and Welsh) law was named explicitly – “France gives us a response only for English law”.

She also said the government’s statements do not themselves constitute law. However, she agrees with David Boulanger that they are sufficient for notaires practically to conclude that article 913 does not apply where English law has been chosen.

She agreed that communication so far has been sparse, saying that it should be the responsibility of the French government – if they explain more fully, this should then assist the notaires, she said.

“If the CRIDONs are unsure, when they are the real experts in international private law, I’m  struggling to see how it’s going to work.”

She added: “Supposedly the government has published an explanation, but they’ve explained nothing at all, even though they made a commitment to the European Commission to communicate.”

Prof Péroz also points out that the 2021 law was, in her view, confusing and unnecessary, as there had already been case law in top appeal court the Cour de cassation (September 27, 2017), which helped to clarify under what circumstances the EU regulation rules on choice of law could potentially be set aside due to l’ordre public international français (‘French international public policy’ – the permitted exception, listed in the regulation itself, on which France now relies).

The Cour said in 2017 that this could include where the particular circumstances of a case make application of the foreign law incompatible with principles regarded as essential in France. 

The case in question revolved around French children disinherited by a father living in the US. The Cour said in that case the ordre public principle did not apply as the children were not left in financial need. 

It stated that entitlement to an automatic hereditary reserve is not considered a fundamental value of France in matters of an international nature (though it implied that a responsibility to save one’s children from serious need, if one has the means to do so, could be seen as such).

There is also earlier Cour de cassation case law, referred to in the 2017 ruling, to the effect that discrimination on the basis of sex or race could, for example, be seen as opposed to fundamental values.

Prof Péroz said this means that French courts could already have refused to apply a chosen foreign law under the EU regulation's public policy exception in specific cases where disinherited children went to court and were found to be in severe need. 

It would also have been possible for a daughter who received half what her brother received due to her sex, to apply to a court on those grounds.

The 2021 rules therefore muddied the water, she explained, especially as lawyers consider that they do not apply to Coranic law, which were the original target of the legislators, which contains a hereditary reserve for daughters but less than that for sons.

The existence of the 2021 rules probably also explains why we have not seen cases of disinherited children applying to courts on the basis of the 2017 ruling, she said.

According to the French government’s explanations to the commission, it was the implied intention of article 913 line 3 to clarify that the legislators considered it to be a matter of French international public policy if a foreign law does not contain anything protective of children. 

The government insisted that the article’s wording used the phrase méchanisme réservataire protecteur des enfants (reserve-type mechanism protecting children) and not réserve héréditaire (hereditary reserve/forced heirship) so as to leave room to exempt laws that contain something that protects children, even if it is not identical to the French hereditary reserve.

Prof Péroz considers that the French explanation does not fit well with the Cour de cassation’s statements that exceptions based on ordre public should be down to the factors of individual cases.

“I really placed a lot of hope in the Commission and don’t understand that they accepted France’s response, which does not do the job,” she said.

She said she now hopes that court cases will one day lead to a clear ruling by the European Court of Justice, which will say that the EU regulation rules on choice of law must take precedence over France’s 2021 law.