The French government’s recent clarifications of the 2021 forced heirship law and foreign-law wills have raised questions as to their implications.
Below we will look at what the clarifications mean in detail.
To recap, the French authorities told the European Commission that the 2021 French rules only apply if the chosen foreign law does not contain any measures that are protective of children.
Otherwise, the 2021 law forces notaires to seek to contact any children not allocated a share according to French obligatory heirs’ portions to ask if they wish to apply for a compensatory levy from the French part of the estate.
France said that ‘family provisions’ found in ‘Anglo-Saxon laws’ [English and Welsh law] are an example of a protective mechanism and thus estates where the testator has opted for these laws are exempt from forced-heirship rules and the 2021 French law.
English ‘family provisions’ rules are not well-known but allow certain children to ask a court for a portion of the estate if they are left in financial difficulty after being disinherited.
The original stated aim of the 2021 law was to prevent daughters from being discriminated against in Sharia law wills.
What is the impact on other laws apart from English or Welsh law?
The government’s statement means the 2021 rules do not apply in the case of either English law or other foreign legal systems that contain mechanisms protecting children from complete disinheritance.
The ministry indicated that these mechanisms do not have to be identical to France's réserve héréditaire (fixed legal portions for heirs).
Thus, it is widely assumed that Scots law, which includes hereditary rights over moveable property (not real estate), is included in this.
It also makes likely the inclusion of systems such as those of Northern Ireland, Australia, New Zealand and Ireland, all of which contain legal provisions allowing children or dependants to make claims against an estate in certain circumstances.
Many Canadian provinces also have comparable ‘dependents’ relief’.
However, uncertainty remains with regard to many US states that do not have a direct equivalent. We review this in more detail here.
As a result, the statements significantly narrow the potential scope of the French levy, but questions remain for estates governed by the laws of countries that offer broad testamentary freedom with no, or few, rules helping children.
Note that laws that allow people to challenge wills on grounds they were improperly made exist in most legal systems and would not count as ‘protective of children’.
For example, in the US it is possible to challenge a will on grounds that the testator was not of sound mind, or that they wrote their will under coercion.
How definitive are the French government’s statements?
The comments came in a letter from the French government to the European Commission and the government gave permission to the commission to quote from it in a public pre-closure letter.
They were deemed sufficiently clear by the commission to warrant probable closure of the file of multiple complaints against France over the 2021 law, subject to possible extension if complainants raise important new points.
France argued that protection of children is a critical principle in France, including in relation to international/cross-border matters, and this allows France to trigger article 35 of the EU inheritance regulation, permitting parts of the EU regulation to be set aside where it clashes with such principles.
However, the preamble to the regulation says the rule should only be used exceptionally.
The French authorities used bold and underlined wording in their letter to the EU to say that if there is any mechanism at all protective of children, then the 2021 rule will not apply.
This probably satisfied the commission that it will be of limited effect and will not see France imposing its own fixed heirs’ portions whenever a foreign law has been chosen for a will.
The Cridon of north-east France, a research body advising notaires, says: “Most legal systems that do not recognise a reserved share for heirs do, in principle, have mechanisms in place to protect children.
“Once the same interpretative logic is applied to them as that adopted for Family Provisions, the practical scope of Article 913, paragraph 3, of the Code civil becomes negligible. Does it still merit retention in the Code civil?”
The French government states that the information as sent to the commission will be published by the end of this month in a monthly bulletin sent to notaires and other regulated professions.
It says it will also update information website Service-Public and its own website justice.fr.
This provides reassurance that notaires will not in future feel they should seek to contact children in the event of wills involving appropriately ‘protective’ laws.
Does this affect non-resident second-home owners?
Non-residents who own a property / properties in France are the main group of non-residents affected by the 2021 rules.
The 2021 EU regulation contains a default rule that usually the law of the place of last residence of the testator should apply to their whole estate (unless another law is chosen in a will).
So, when notaires in France are involved in the passing on of French properties belonging to people living outside France, a foreign law will often be applied to their French property, potentially triggering the 2021 rules.
This is also the case where the non-resident with French property chose a non-French law in their will.
However, other conditions must also be met for non-residents to be affected, namely, they or at least one of their children must be an EU citizen.
The latest clarifications will, therefore, also come as a relief to some people living abroad, for example, those in the UK who own a French second home.
How are dual nationals affected?
Dual nationals with French or another EU nationality are subject to the 2021 rules even if they live abroad, if they retain property in France (see above).
So, the recent clarifications come as good news to some wanting to leave their whole estate either under the law of the country where they now live, or another law of their nationality, as long as this law has ‘protective’ rules.
The EU regulation says you may choose the law of any country of which you have the nationality. For example, the clarifications help those who are British-French and live in France, and want to choose English law in their will, to govern their estate.
Concerning the UK’s three legal systems (England and Wales, Scotland, Northern Ireland), you may choose the one with which you have the closest link. If the absence of an explicit choice (eg. if your will says ‘UK law’) the notaire dealing with your succession, or a court, would decide.
As a foreigner, should I ask my notaire to check that my will complies with the EU regulation?
Notaires will need to review the new rules detailed in the bulletin sent to them shortly (scheduled for the end of the month).
However, otherwise, yes this may be a good time to visit your notaire to ensure that, if this is your wish, your will makes your choice of law as clear as possible.
There should be wording such as ‘je choisis la loi anglaise pour régir ma succession’ [I choose English law to govern the distribution of my estate].
If you are unsure if the law of your nationality is covered by the French government’s comments you may wish to discuss with your notaire.
However, it is worth remembering that in many more simple family situations, French-law rules pose no problem and a will made under standard French law may help simplify the administration of your estate, so there is no need to systematically choose the law of your nationality if you are foreign.
French law also allows for various tools, such as buying a property with a tontine clause or leaving your spouse the usufruit over your estate, that can help with planning the way your property is passed on.
Please send any questions on this topic to feedback@connexionfrance.com.
