Questions & Answers - EU regulation

What effect does Brexit have?

How does Brexit affect the ability to put a statement in your will to say that you want to adopt the inheritance laws of your country of nationality (in my case the UK)?

Lawyers confirm that the UK coming out of the EU had no effect on inheritance laws. In fact, the UK originally decided not to ratify the EU inheritance regulation yet despite this it is still possible for Britons to take advantage of it, both those who live in France and those who live in the UK and want UK law to apply to their French property. This results from wording in the regulation itself and the way it is interpreted in France.

It also means that people from non-EU countries like America or Russia can benefit from the regulation if they so wish and the same applies to Britons regardless of Brexit.

Can a child be excluded?

My brother has not spoken to my mother for many years and she does not wish to leave anything to him (he already had a lump sum before she moved to France). Will she be able to leave her estate to my other brother and myself as she is English?

Yes, that is correct, she would be free to leave her estate as she wishes as she can opt for the more flexible inheritance laws of England and Wales. Note however that if she does not take up this option French inheritance laws do take into account large lifetime gifts such as your brother’s lump sum.

Can an Irish-French dual citizen in France disinherit their child?

I am of dual nationality – I am Irish by birth and French by marriage – so would the 2015 regulation allow me to opt for Irish law and bypass the enforced French laws of inheritance and let me ‘disinherit’ a child in favour of my husband?

Yes, it would. France has taken a strict interpretation of the regulations on nationality and is allowing people to choose the law of any nationality they hold to apply to their succession as long as the choice is made clearly in a will.

However, there is the issue of Irish law itself. Under Irish law, children have no automatic inheritance rights, unlike spouses and civil partners who are entitled to half if there are no children or otherwise a third.

However, they can contest wills if they can show a court that their parent has “failed in his or her moral duty to make proper provision for them (the child) in accordance with his or her means”.

The child does not necessarily have to show they were dependent on the parent. Each case is decided on its merits and the court looks at the situation from the point of view of a “prudent and just” parent.

It is difficult to say how the French courts would deal with this if such a challenge was made.

Effect of tontine under the EU rule?

We are both British and live in France. We bought a French house with a tontine and then another property after we had entered into a French marriage contract. We each set up a will in the UK but have not done so in France.

With the new regulation, how does the tontine or the contract affect inheritance?

Notaire François Trémosa answers: I am assuming you have children and that, as you do not mention any complications, they are common to you both.

If so, the arrangements you have are valid and correspond to your situation.

Using the EU regulation will not be necessary as your marriage contract will protect you efficiently.

The regulation is more useful for couples whose children have a different father or mother [eg. because the marriage contract effectively disinherits children of the deceased who are not common to the marriage, and who may seek to contest it].

If, however, you actually want to opt for English law so as to modify the effect of these, be aware that, under French law, a tontine clause and a marriage contract will always apply first.

This means that if, say, you want to change the way you will share out the properties, you will have not only to opt for English law but also to modify the tontine and contract.

Must I leave French flat to my son?

I am English and live in the UK. I own a holiday flat in France. When I bought it in 2003, inheritance law stated that my son, who is my only child, would inherit it. Can I now leave it to whoever I choose and if so how?

Yes, the EU regulation’s rule on place of last residence means French lawyers should take English law as applying to your estate by default, so you can take advantage of its more flexible rules.

However given you are a UK resident, many experts advise that you make a French-asset specific English will to sit alongside your main English will (assuming you have one). To be on the safe side, this should clarify your intention for English law to apply to your whole estate and you can name your chosen beneficiary.

However note that if your beneficiary is unrelated to you and is not a spouse or civil partner, they will pay 60% French tax. Your son on the other hand would receive a tax allowance of €100,000 and then pay according to bands from 5% to 45%.

Can we make a will as a couple?

We want to opt for English law in a will but can we draw it up together as a couple?

No, each person should make their own will and if you have goods held in common you may bequeath your share in the property but not the whole of it (for example a jointly-owned house). 

The most common kind of will is the testament olographe. It is best for it to be in French, avoiding a need for translation afterwards, and it should begin ‘ceci est mon testament’ (this is my will). It is also important to make the wording direct and to identify heirs clearly (see here for more information).

Inheritance planning can be complex and you may wish to take advice from a notaire on matters like the protection of a surviving spouse or the option of bequeathing lifetime use of a home to someone and residual ownership to someone else.

Can we disinherit a child and exclude them from their share of estate?

Can you specifically disinherit a child and exclude them from succeeding to their share of your estate? We are English and live in France.

Children are known, under French inheritance law, as reserved heirs (see here) which means they are automatically entitled to inherit a share of their parent’s assets on their death. This automatic entitlement cannot be overridden by making a will under French law.

As British nationals, you could however invoke the benefit of the EU Succession Regulation – otherwise known as Brussels IV – which allows you to choose the law of your nationality to govern the whole of your succession (i.e. English law if England is the country of your closest connection).

English law gives you full freedom to dispose of your estate as you wish provided that it does not contravene the Inheritance (Provision for Family & Dependents) Act 1975 under which children can be disinherited unless they can prove that they are financially dependent on their deceased parent.

Careful will drafting is required as the will dealing with your French assets should include an express election of the law of your nationality (English law) under Brussels IV. Otherwise your choice of law could be invalidated.

If I gain dual nationality will French law apply?

Are there implications if I take French (dual) nationality and am resident in France when I die? Will my will be able to be processed as if I was in Britain? Or will the French insist it is processed by French law?

Solicitor Barbara Heslop said: The purpose of the regulation is to simplify the administration of a deceased person’s estate by providing that the law of the state of the individual’s “last habitual residence” will govern their worldwide estate.

However in member states which adopted the regulation it gives individuals the option of declaring by will that he or she wishes the law of the country of which he or she is a national to apply instead.

Individuals with dual or multiple nationality are free to choose which state’s law they want to govern their worldwide estate, including also the law of a non-EU member state. 

While this is what the EU regulation says, some experts did wonder whether taking French nationality might possibly pose problems when the legal change came in (though Connexion understands that this has not so far proved to be the case).

This was due to the fact that for most purposes France considers a dual national to be French and disregards other nationalities.

Gerard Barron, an honorary avocat from Boulogne-sur-Mer, who is a dual French-British national, said, however, that France now appears to be taking a ‘strict interpretation’ of the regulation (ie. interpreting it to the letter of the wording) and so it appears likely that in general there will be no problem.

Having said that, he added that if a disinherited child tries to challenge the choice of UK law in the French courts (particularly with regard to any French property), they might still try to take advantage of the fact you are French, and at this stage, with no court decisions on the issue, it is hard to state the outcome with complete certainty.

The wording of the regulation also contains a so-called ‘public policy’ exception, which allows for a rule contained in a chosen foreign legal system to be disregarded where its application would be ‘manifestly incompatible with the public policy of the member state concerned’, in this case, France.

However Mr Barron said he thought this was unlikely to be applied to most situations relating to dual nationality. 

“I believe that in this case the exception would probably only apply, subject to the courts’ opinion on a case-by-case basis, to someone whose country of origin is France and who, after publication of the regulation, obtained foreign (ie. British) nationality with the primary aim of side-stepping French inheritance rules.”

Disagreement between lawyers

My husband and I owned a second home in France but were resident in the UK at the time of his death. He had made a will in the UK leaving everything to me but specifically excluding the French property as we assumed French law would apply to that.

However, there is a disagreement between my French notaire and UK lawyer: the former says since my husband made a UK will he opted for UK law to apply to the whole of his estate, and it cannot be split between two jurisdictions. 

The UK solicitor says because the UK opted out of the European regulation he was within his rights to exclude the French property: so French succession law should apply to that. Who is right?

The UK solicitor is correct and the French notaire is understandably confused as all other member states ratified the EU Succession Regulation apart from the UK, Ireland and Denmark.

The confusion arises because the regulation has a principle that only one succession law should apply. However, as the UK did not ratify the regulation, then two legal systems can apply.

As your husband died resident in the UK, English law applies to his estate. He has excluded his French property from his will and therefore not elected English law to apply to it. His French property estate is therefore intestate.

English law applies French law to the French property, and as such it passes under French intestacy law.

If there are French moveable assets in the deceased’s name, such as bank accounts, then these are dealt with under English law, either under the will (depending on what the precise exclusion is) or under English intestacy law.

In any case, the notaire must administer the French property. He or she can contact the Cridon [legal research service with international specialists] who should reiterate this analysis.

Problems with ‘two-stage’ bequest

My wife and I are English, living in France. We saw a notaire to make wills for our jointly-owned French home, choosing English law. We have two daughters and want to leave our assets to each other in copycat wills, then the survivor would leave everything to one of our daughters. 

The notaire said we could leave each other all our assets but on the survivor’s death the property would be treated under French law and our daughters would receive equal shares. Is the notaire correct?

You may choose the law of the state of your nationality to govern your worldwide succession when making the choice or at the time of death. You need to do this by making wills that make the choice explicit. You thus bypass the restrictions of French succession law.

One solution is to name each other as sole beneficiary and add a separate clause providing that if your spouse has predeceased you, your daughter is to be the sole beneficiary.

Give her full name (including maiden name) as well as her date and place of birth and her current address.

Your notaire may have thought you wanted to say: “I leave everything to my spouse and then to my daughter X” – which causes complications in France.

You could contact a specialist firm of English solicitors to draft specialised English wills or, if more practical for you, contact a notaire who is familiar with English clients and the succession regulation.

Though you may choose English law, if you die resident in France a notaire will administer your estate following English law and French inheritance tax will still apply to your estate.

How can I leave my house to my partner and not my daughter?

I live in France. I have an unmarried partner. She has put money into my property and is worried that if I should die she will not get it. My daughter says she does not want anything to do with it and I can give it to my partner. What should I do?

Solicitor and French law specialist Barbara Heslop said: Assuming you are a UK national, born in England or Wales, you could make an election of English and Welsh law pursuant to the EU succession regulation and then name your partner as sole beneficiary of the property (and the rest of your estate if you do not intend to leave any other assets to your daughter).

This can be done either by making a French handwritten will or by making an English will.

However, if you and your partner are neither married nor civil partners, your partner will pay 60% inheritance tax in France on the value of the assets she inherits from you. Note that both same and opposite sex partners can sign a French civil partnership agreement, called a Pacs.

You should therefore consider getting married or become Pacs partners to protect your partner and to ensure anything she inherits from you under the terms of your will, will be tax free.

You could also specify that while the property is to pass to your partner, your daughter is to receive a cash sum, if your estate will include money in a bank account or other investments. The election of English and Welsh law is essential if this is what you would want to happen on your death.

English will of French resident

I am British and a permanent resident of France with an English will. In future, is it going to be automatically valid in France?

It may be; however, whether your will is in English or French and in English or French format the will’s dispositions as regards any French property cannot break the usual French rules unless it specifically states that you want the law of your nationality to apply. 

What is more, it is not generally recommended to dispose of French assets in an English will because it will require translation and the format may cause complications.

Does English law give total freedom?

The EU regulation would allow me to choose English law. Does that give me complete freedom to leave my estate as I choose?

English law allows great freedom to leave your estate to whom you choose (Scottish law is not so simple as it requires you to leave a certain portion of moveable assets to a spouse or children). However this is subject to two provisos:

The 1975 Inheritance Act, refers to making “reasonable provision” for your dependants’ maintenance, education or advancement in life.

The possibility of a common law challenge to a will's validity.

Honorary avocat Gerard Barron said, unlike the French rules, “reasonable provision” is far from meaning a set share.

“This allows a dependant – minor or handicapped child or an impecunious spouse – to obtain funds from the deceased’s estate, if the court finds that it was unreasonable to have made no provision or an insufficient provision.”

Traditionally non-dependent children have had no rights but the English courts’ position on this may be evolving after a woman whose mother left everything to charities she had no known connection with, won a large sum in 2015 based on facts which included her having a large family and being in financial need.

This suggests that it is now best for testators to spell out in their wills why they are disinheriting a child and what their link is with their chosen beneficiary/ies.

This may cause complications for French courts if called on by a disinherited child to work out if it was ‘reasonable’ under English law criteria but at present there have been no cases on the matter.

As for a common law challenge, the applicant must prove that the testator was not of sound mind when making the will or was acting under duress. “That invalidates the will, meaning that intestacy rules apply. However, the fact that the will appears unreasonable is not proof the testator was unstable".

We are not married so who would inherit our property?

Both my partner and I have children from previous relationships. We are not married and plan to buy a house in France where we will live full-time. What would happen to the property if one of us was to die?

If one or the other of you was to die then that person’s children would, under French inheritance law, inherit part of that person’s share in the house, according to the French inheritance rules (eg. half if a single child, two-thirds for two children etc). See here.

A will would be needed to make sure the remaining part went to the surviving partner.

Buying with a tontine clause is one option if you both want the other partner to inherit the house.

You could also make use of the EU inheritance regulation to opt for UK inheritance rules, so as to leave everything to the other person in a will.

Note though that, in relation to inheritance tax, it would be considerably better to marry or take a French civil partnership (Pacs) to avoid heavy tax levies (60%) for the survivor.

I want just one of my three children to inherit

I have owned a French property since 1983. Can I leave it to just one child (who is involved with it and loves it as I do) instead of my two other children who are not remotely interested?

You are right to question this. Under the EU Succession regulation that came into effect in August 2015, you are able to use your will to make a clear election for the law of your nationality to apply to assets situated in most countries in the EU, including France.

This remains the case post-Brexit. If, for example, you are English, you can elect English law in your will so that the French property passes in accordance with English law, which usually means that your will takes full effect and you could leave your French house to just one of the children.

There is, however, the usual English law warning that if any of the children are financially dependant on you, they may be able to bring a claim for reasonable financial provision if they have not been reasonably provided for under the will. It is advisable to have a will specifically dealing with your assets in France, and a separate one dealing with your assets in other jurisdictions.

The two wills need to be carefully drafted by an expert who is used to dealing with both jurisdictions, so that they do not revoke or contradict each other, and to avoid expensive taxation and administrative errors.

If you do not make an express election of national law, then it is likely that French law will apply to your French immovable property. Under French law, all children are entitled to a share of the estate.

If you have three children, they are entitled to a quarter each, and the remaining quarter can be freely disposed of. Even if you do elect national law, French inheritance tax will still apply to the French immovable estate. Each child has a tax-free allowance of €100,000, if they inherit from a parent, and a sliding scale of tax applies above that.