ACCORDING to The 1961 Hague Convention, a will made in France by a foreigner in compliance with the law of that foreigner's country is valid in France.
For instance, a will drawn up in France by a British national, living in France, making his will in accordance with English law (typewritten, in the presence of two witnesses with everyone signing at the same time) is valid in France.
Nevertheless, succession is limited by both the domicile of the person drawing up the will as well as the country in which the assets are found. French law automatically applies to all non-liquid (real estate) assets located in France.
French law also applies to world-wide assets of people domiciled in France, with some exceptions on real estate depending on its location. For instance, real estate in Britain is not subject to French law.
Additionally, it is important to note that French inheritance law is fundamentally different to that of common law nations like Britain and America.
For instance, unlike in common law nations, it is not possible to disinherit one's children.
The succession is subject to limits if the person drawing up the will has offspring (legal heirs). Legal heirs have automatic rights to a legal reserve (part of the assets which a person cannot freely dispose of and which is thus reserved exclusively for his or her heirs). The remaining portion, which may be allocated freely, is known as the disposable quota (one half of the estate if there is one child, one third if there are two children, one quarter if there are three or more children).
If a testator goes beyond the disposable quota, his heirs may, upon his death, apply for a reduction of the excessive bequests.
Recently, I was contacted by an English client who had drawn up a will in the UK leaving all of her assets to one of her two sons.
Concerned
The client owns a house in the French countryside but otherwise, all of her assets (both cash and real estate) are outside of France.
The client does not have French residency. She was concerned that her will might not apply in France and she wanted to guarantee that the French country house would go to only one of her two sons.
She was no longer on speaking terms with her second son. In fact, he refused to have any contact with her and they had not spoken to each other in over twenty years.
According to French law, although her will is valid in France, it would not be fully enforceable. If her second son were to contest the will, he could claim up to one third of the French property.
It is also important to note that my English client's non-French assets can be freely distributed however she sees fit.
However, were she deemed to have French residency, then French law would apply to her world wide assets, excluding her UK real estate.
Because of these limits, it may be good practice to draw up a separate will with local lawyers covering assets in each country where the assets are found.
This usually results in expediting succession as it guarantees that the wills are valid and enforceable according to local laws.
In France it is best to draw up and give the will to a notaire who will, in turn, register it with the French National Registry of Last Wills and Testaments (le Fichier Central des Dispositions de Dernières Volontés - FCDDV) so that it can be readily found upon the death of the person drawing it up.
There are four types of French wills:
■ Holographic will: written entirely in the testator's own handwriting. This need not be done in front of a notaire.
■ Authentic will: drawn-up by a notaire in accordance with the testator's instructions in the presence of two witnesses or another notaire. This affords complete security. The only requirement to be a witness is to be of majority age and to understand French. A husband and his wife cannot be witnesses of the same will.
■ Mystic will: This type is handed to the notaire in the presence of two witnesses or another notaire, in a sealed envelope.
A mystic will gives the flexibility of a holographic will and the security of an authentic will in view of the involvement of a notaire.
■ International will: Can be made in any language, and does not have to be hand written. The testator will declare that this is his will in front of two witnesses and a notaire, and he will sign it in front of everyone.
All wills have the advantage of being flexible in that they can be revoked at any time.
It is advisable for people interested in drawing up wills in France who are not fully fluent in French to both draw up a holographic will and to choose a notaire who speaks their native language.
In 2000, a Chinese national living in Paris, twice a widower, died in Paris. He had one child from his first marriage and four from the second one. A few days before his death, he asked his notaire to come to the hospital where he was being taken care of, to draw his will.
According to his will, he left his Paris flat to his eldest daughter and another property - a house - in Paris to a young lady who was not a member of the family.
Two days later he asked his notaire to come back to amend his will over a minor detail: the name of his Parisian house. In both wills, it is stated that Mr Han expressed himself in Chinese, and that the translation was done by a witness, a lawyer.
The man in question passed away a few days later. Upon his death, his five children challenged the will and the French court declared it null and void on the grounds that, according to French law, the notaire and the witnesses must understand the language in which the testator, the person drawing the will, expresses himself: no help from a translator is allowed.
By notaire François Trémosa from Toulouse, of the Groupe Monassier
