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UK inheritance law really flexible?
I WOULD like a clarification on a matter you mentioned in your May edition, in connection with the changes in inheritance rules which will allow Britons in France to opt for UK law to apply to their whole estates. You said that, while UK law is much more flexible than French (which requires set portions for your children), it does allow for challenges to a will if you have not left “reasonable provision” for certain people. Can you explain further? I thought English law allowed you complete freedom. F.J.
English law does allow great freedom to leave your estate to whom you choose (Scottish law is not so simple, as it requires you to leave a certain portion of moveable assets to a spouse or children).
However this is subject to two provisos:
* The 1975 Inheritance Act, refers to making “reasonable provision” for your dependents’ maintenance, education or advancement in life.
* The possibility of a common law challenge to the validity of a will.
Gerard Barron from Boulogne-sur-Mer, a French avocat and British solicitor, said that, unlike the French rules, “reasonable provision” is far from meaning a set share.
He said: “This allows a dependent - minor, handicapped or otherwise incapable child or an impecunious spouse - to obtain funds from the deceased’s estate, if the court finds that it was unreasonable to have made no provision or an insufficient provision for them.
“There are no preset rules, unlike the French Code Civil, and it does not permit nondependent children to obtain a share of their deceased parent’s estate where they have been disinherited by will.”
Asked whether the French courts might apply it to expats opting for UK law in their wills, he said: “I do not believe the French courts will feel inclined to apply English case law in order to determine whether the deceased was acting reasonably by making no provision for the applicant or what a ‘reasonable’ provision for that dependent might be.”
As for a common law challenge, Mr Barron said the applicant must prove the testator was not of sound mind when making the will or acted under duress.
“That invalidates the will, leaving intestacy rules to apply.
“However the fact that the will appears unreasonable is not proof that the testator was unhinged.”