French inheritance rules for foreign-law wills face legal challenge

A case before the Paris court could pave the way for an authoritative ruling on France’s 2021 law on heirs’ ‘compensatory levies’, which has caused complications for foreign couples.

An EU regulation says the inheritance law of the place of a person’s last habitual residency applies, or otherwise a law of their nationality that they chose in their will.

France subsequently introduced a law allowing children, in certain foreign-law successions, to claim from French-situated assets up to the reserved portion they would have received under French law.

The 2021 law states that where the testator or one of their children was an EU resident or citizen, and a foreign law will apply that lacks protections for children comparable to France’s, the notaire should contact them to offer the right to claim a levy from any French situated property up to the level of the French reserved share.

A case before the tribunal judiciaire de Paris concerns a French man who died in the Bahamas in 2022 having made a Bahamian will in 2019 and who intended to leave his estate to his surviving spouse.

Bahamian law is flexible, in the common law tradition, though in certain circumstances children can make claims to a court for financial provision – usually where they are under 18, under 23 if in study or training, or disabled.

The case raises issues around the legality of the 2021 law – seen by many lawyers as clashing with the EU regulation – as well as, potentially, questions of what protections for children are legally sufficient for the law’s own internal rules to disapply the ‘levy’ mechanism.

In recent clarifications from the French government to the European Commission, the government said English law’s ‘family provisions’, that allow children left in financial hardship to claim some inheritance, were a ‘functional equivalent’. The clarifications relate to how the French government "interprets and applies" the law, according to official sources, though some notaires remain unfamiliar with them or reluctant to apply them as they have not yet been formally confirmed by a court (see here for more about choosing a notaire to deal with such issues).

A court case with a ruling from France's top Cour de cassation or from the Court of Justice of the European Union could help cut through the problems. 

In the court case in question, one of the deceased man’s two sons is contesting the will, asking that the will be annulled or, if not, that he should receive a levy. This is opposed by his other son and surviving spouse.

The lawyer for the younger son and spouse, Aurore Cressent, said the older son was the deceased’s son from a previous marriage, lives in France and is a French national.

“Firstly, we are seeking that the Bahamian will should be followed,” she said. “The idea is that the EU Succession Regulation establishes the principle of the unity of the law applicable to the succession.

“So, we consider that the only law that should apply here is Bahamian law, and that French law – and in particular the reserved portion – should not have any bearing on the case.

“So, we intend to have the application of article 913 paragraph 3 of the civil code [the ‘levy’ law] set aside.

"The ground put forward is that the application of French law providing a compensatory deduction violates the principle of the primacy of EU law, given that the Succession Regulation provides for a single applicable law.

 “In fact, we would like the Court of Justice of the European Union [CJEU] to make a ruling on this question of the conformity of the French law with European law.”

They asked the court to refer a question to the CJEU at a preliminary hearing earlier this year.

The request was rejected as the case-management judge said it was a matter for the court hearing the substance of the dispute.

However, the judge invited the parties to make submissions on a possible referral to the CJEU – or alternatively a request for an opinion from the Cour de cassation – when the merits are considered.

“So, we asked a little early, but at least the question is out there,” she said. “I think the judge will be particularly careful about this matter.”

She said she was aware of the complaints Britons – many of them Connexion readers – made to the European Commission about the 2021 law, but also that the CJEU had yet to have a question formally addressed to it on this.

She found it “strange” that the commission had declined to open an infringement case against France, instead accepting France’s explanations that the ‘levy’ rule did not apply in the case of English law, the law of most of the complainants.

The French authorities’ argument that  ‘family provisions’ are a functional equivalent of France’s hereditary reserve is considered by many lawyers surprising and poorly to address the underlying clash with the EU rules.

Ms Cressent hopes to have a decision as to the referral in 2027.