English-speaking notaires can help with forced heirship issues in France

The Connexion has identified more than 50 English-speaking notaires across France with suitable expertise to help readers facing difficulties linked to the country’s 2021 forced-heirship law.

The initiative follows discussions with experts including David Boulanger, director of CRIDON Nord-Est, one of five specialist bodies that advise notaires on complex legal matters, including international cases.

We offer this list as a guide to notaires likely to be able to help English-speakers with complex inheritance matters.

They speak English, have experience of wills and successions involving more than one country, and are familiar with the French government’s clarification this summer that the 2021 ‘compensatory levy’ does not apply when an estate is distributed under English or comparable law.

Can you change your notaire?

If you have lodged your will with a specific notaire and are dissatisfied with their interpretation of the rules as to what should happen after you die, you are free to seek advice from another; ideally one who specialises in private international law (droit international privé).

The latter is the area of law practice which includes wills and successions with an international element. 

You may lodge a new will with the new notaire, even retaining the same provisions, or leave your existing will with its current notaire.

A will lodged with a notaire is recorded on the central FCDDV register, which identifies the office holding it.

After the testator’s death, the surviving spouse generally has first choice of the notaire handling the succession and may select a different one, unless the will excludes them from inheriting.

So, even at this stage it is possible for the spouse to designate a different notaire.

In this case, the new notaire will consult the FCDDV and liaise with the office holding the original to obtain the necessary copy and information.

Why the 2021 law caused problems

To recap, the issue concerns estates where a foreign inheritance law applies – because someone dies living abroad leaving property in France, or where a foreign national had chosen the law of their nationality in their will.

Under EU rules, the law of the deceased’s habitual residence applies to the whole estate unless they have validly chosen another law.

In 2021 France introduced a rule (Code civil article 913, paragraph 3) concerning estates governed by a foreign law that does not provide protections comparable to France’s reserved portions for children, where the children have not received comparable amounts.

Where the testator or at least one of their children was an EU resident or citizen, the notaire handling the estate must contact the children about their right to claim a ‘compensatory levy’ from French-situated assets.

The rule prompted complaints to the European Commission, particularly from British couples wishing to leave everything to the surviving spouse under UK inheritance law.

The commission closed the case after France clarified how the rule should be interpreted, concluding that this had resolved the legal uncertainties. 

France said foreign laws need not replicate its fixed-heirship rules if they offer children some protection, citing English ‘family provision’ rules as an equivalent; this interpretation can apply immediately to estates not yet settled.

However, limited publicity and a lack of official guidance mean some notaires remain unaware of, or reluctant to apply, the clarification. 

Some also point out that while the clarifications are the official view of the government, and are thus described by some experts as ‘administrative doctrine in civil-law matters’ they do not in themselves have the legal force of an act of parliament or court judgement. 

What notaires are now saying

Mr Boulanger, who has studied the issue and published articles on it in specialist press, believes they are sufficient, at least as regards English law, for notaires to follow them in everyday practice.

This means that where a will chooses English law, the notaire dealing with the succession does not have to apply the ‘levy’ rules or inform children of a – non-existent – right to this.  

He told The Connexion: “I’ve studied the family provision rules and confirm that in my view the notaire doesn’t have to contact the children any more than a solicitor would have to if we were in England.”

Mr Boulanger disagreed with CRIDON of Lyon, which told The Connexion that the clarification was “difficult to make use of” and suggested asking children to formally renounce the levy.

This would offer little help to people wishing to leave everything to a spouse, particularly where family relationships are strained or children come from different relationships. 

Mr Boulanger said: “There is no reason for the children to intervene and still less to sign a deed [renunciation of the levy] that does not exist in English law.”

Under English law, family provision claims – which are uncommon – are at the initiative of the children and normally have to be brought within six months of the grant of probate, though courts can allow later claims.

Many notaires we have listed agree with these interpretations, while some are more circumspect, saying they will consider each family’s situation case by case. 

A few were unsure about the duty to inform the children. One said he would do this but while doing so would stress that the right to the levy in English-law will cases is now uncertain and is contested by government doctrine and the EU commission and that they would need to apply for a French court ruling if they wished to proceed. 

Several notaires noted that the situation is less certain for laws other than English, even if the authorities did refer in general to ‘Anglo-Saxon’ laws. 

Mr Boulanger said some notaires have always felt uncomfortable with the lack of a ‘hereditary reserve’ in English or most US laws, though others became used to these laws through helping clients use the EU Succession Regulation (also known as ‘Brussels IV’).

He added: “There is a risk of things remaining a little fuzzy as long as we don’t have a court ruling on this from the Cour de cassation. I would recommend Britons to think ahead as much as possible with their notaire to avoid issues after their death, and to choose their notaire well.”

• Inheritance law campaigners Ronnie Bennett and Trish Miller urge those affected by these issues to lodge fresh complaints with the European Commission over the low-key publication of the clarifications so far. Ms Miller has also written to the Conseil supérieur du notariat asking that they be publicised prominently to the profession.