Hopes rise for solution to France’s 2021 inheritance law
Controversial legislation is forcing many Britons and Americans to sell
The European Commission has been investigating France's controversial inheritance law that obliges notaires to inform bloodline childrenIvanGar_Fotografia / EBASCOL / Shutterstock
Hopes are rising for a court ruling this year over France’s controversial 2021 inheritance law, which seeks to enforce French obligatory heirship rules regardless of foreign-law wills.
In addition, another lawyer has come forward to share details of a case following our report into a case under way for an American, faced with a claim from her French stepson over the French-situated part of her late husband’s estate.
Many people, especially from the ‘Anglo-Saxon’ nations, have faced stress after France passed a law which most lawyers believe clashes with rules from a 2012 EU regulation which allows people to choose in a will the inheritance law of their nationality (or which states that, if no choice is made, the law of the last place of residency applies).
The 2021 law applies where the deceased or at least one of their children was a French or EU resident or citizen and a foreign legal system without forced heirship is set to apply to their estate.
Notaires settling French property are required to inform bloodline children of the deceased of a right to a ‘compensatory levy’ from the French-situated part of the estate, in line with French law forced heirship (for example, half the estate for a single child or two thirds for two).
Simon Deceuninck of Citizen Avocats in Bordeaux is representing a widow whose civil partner has died leaving an art collection as the main asset. They lived together in France and the deceased was British, while the widow is Irish-British.
Her partner had made a will choosing English law, leaving everything to her, not his son or daughter who live abroad.
“It’s a typical case where the law resulted in an unfair situation,” he said. “The surviving children are quite well off whereas the surviving widow really needs this estate.
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“The children have summonsed us to court to demand a valuation of the estate in view of a future compensatory levy. My defence will be that this should not be done.”
He said he applied to the juge des référés, a judge who can take a quick provisional decision. However, his or her ruling does not definitively settle underlying legal questions.
Lawyers for the children initiated the contact, demanding part of the estate.
“Now it’s suspended pending a judicial resolution,” he said. “I will say it is not possible, that the succession is governed by English law and they lack a fair motive for demanding this valuation because they have based themselves on a future claim that would breach the EU regulation.
“The decision we will obtain – I hope between September and November – will give us a good sign as to whether this question is being treated seriously or not.
“For example, if the judge dismisses the claim for valuation, it will be a sign that he thinks there is a potential breach of EU law.
“That would force my opponent to go before the main court, where I will raise the issue again and, I think, they will transmit it to the European Court of Justice [for its view on the legality of the 2021 law].”
He plans to say that EU law comes above national law and that EU regulations are directly applicable and cancel out national laws in contradiction.
He added that France’s Civil code article 913, that details the 2021 rules, harms the aim of the EU regulation to give clarity as to which law system applies to an estate.
“We are at risk of having successions that are incoherent, because of the application of competing rules and it also breaches the objective of making inheritance matters predictable. It places testators in difficult circumstances because they do not know how their estate will be settled.”
He added: “It’s time to go on the attack. Foreign people have been very worried and have tried unsuccessfully to obtain a ruling from the European Commission. I think now the multiplication of cases will raise the chances of it being sent to the ECJ.”
Local judges may be “hesitant” to take a final decision without input from the European court, he added. He said the best time to act would be as soon as you are notified of a person wanting to make a “levy” claim.
He added it is possible to set up contracts where a third party or parties help to fund a case. This can include a clause that the funder would obtain a ‘success fee’ if the case is won.
The Connexion has heard of another person who, in discussions with the avocat we quoted in our last edition, is considering how to fend off a claim from stepchildren, but the person does not wish any publicity.
Alan ColeAlan Cole
We also spoke to reader Alan Cole, 62, from Lot, whose wife died two years ago having made a will one month before the 2021 law was passed, choosing English law to leave everything to him.
He is facing claims against his home – which he wants to sell – from stepdaughters in the UK from his wife’s previous marriage. The couple had owned the house jointly as their main asset.
The former taxi manager, who moved to France in 2020, said his wife “would have been horrified”.
“I’m looking at selling up and moving back to the UK or somewhere else,” he added. “This house was our dream as a couple and I want to move on but feel I can’t.”
If he has to give away two-thirds of his wife’s share to them (around €50-80,000) he would struggle to find a home in the UK, he said.
“I’m probably not going to have enough money as it is, let alone if they get a chunk. They have good jobs and houses and have more money than me.”
He is considering legal action but is concerned about the expense.
“France are founding members of the EU, so they should follow EU law,” he said. “There’s meant to be one rule everyone follows and they’ve made a mockery of it. We wouldn’t have settled here if we had known.”
