France’s response to the European Commission’s proposed solutions to problems caused by its 2021 forced heirship law is now two months overdue.
The commission gave France until October to respond to its ideas, but in late September the French authorities apologised for a delay, which they said was due to the complex political situation in the country.
As December approached, there was no news from the commission or justice ministry, whose minister has to sign off the document.
The commission says any developments will be reported on its complaints website, including any measures it decides to take. The last update was from August 1.
Campaigners against the law, especially spouses who made foreign-law wills to benefit each other in the event of one’s death, are frustrated by the delay, as are notaires, whose jobs have been made more difficult.
The calls into question wills made using an EU regulation that allows people to choose in a will the inheritance law of their nationality to cover their whole estate.
It says that where a foreign law without forced heirship rules will govern the share-out of an estate, and where the testator or one of their children was an EU citizen or resident, notaires must contact children to notify them of a right to claim a ‘compensatory levy’.
If claimed, it should be taken out of any French-situated estate, up to the amount of the French-law heir’s obligatory portion, ie. half for one child, two-thirds for two, three-quarters for three or more.
'Unfair, backward and unjust'
Notaire Jérôme Poltorak, from Toulouse, spoke to The Connexion about his frustration with the 2021 law, which he finds “unfair, backward and unjust”.
He said: “I specialise in international law and, before this 2021 law, I often agreed with clients to put in place strategies applying the EU regulation.
“We are now affected every day, since we have to adapt their wills and explain this to them – and try to find solutions that are never perfect for this.”
The problem mostly affects clients of nationalities with common-law systems, such as England, the US and Australia, he said. “I find it unfair that this law ultimately works against them and is contrary to their interests alone.”
He said it originally targeted Sharia-law wills, which it was thought may discriminate based on sex of heirs, but is widely believed to have missed this mark. “It’s really nonsensical,” he said.
Mr Poltorak said that in discussions with other cross-border law experts in London, they think the situation might have been influenced by certain conservative lawyers in France.
“There are internationalist lawyers who take the view that other legal systems are equally valid and that it is important to respect different cultures.
“Then, there are other people who are traditionalists, who have a hyper-conservative mindset, and they say everything in France must be done in the French way. I think that’s ridiculous, personally.”
Asked if they believe it is vital to strengthen the French concept of heirs’ portions, he said: “Yes, I get the impression they fear foreign law might influence us; but EU law already influences French law and the 2021 law is contrary to the EU regulation, even though this takes precedence over national legislation. It also contradicts case law in the Cour de cassation.
“The problem is that it drives foreigners away, because they’ll say it’s not in our interests, we can’t do what we want, and we’re going to leave France, which isn’t good for our economy.”
He added: “I have some clients who have seen the 2021 law and have said ‘We’re not interested in living in France because we have property in the US and England, and we don’t want children to be able to contest that.’ What’s more, the law is unclear on how the compensation is calculated. We still don’t know for sure if it’s based on the total value of the assets or just assets in France.”
In his practice, as among The Connexion’s readership, he finds the ‘classic’ situation is where husbands and wives want to be able to leave everything to each other, which is a common wish in the US or UK, with anything left going to the children after the second death.
One idea that helps in some (but not all) situations, including some where there are children from previous relationships and where there is property split between countries, is for spouses to draw up a notarial deed called a donation entre époux, or a will, leaving the other person the usufruit (lifetime use) of the estate according to French-law principles.
Complex issues are involved
Mr Poltorak said that when he speaks to other notaires, he finds many do not have the interest or expertise in international matters to grasp all the complex issues raised by the 2021 law. However, among fellow specialists in international law, “they all think it’s an absurdity”.
He is eager to see the commission make a decision on whether France has infringed EU law and believes France will no longer be able to ignore this if it does.
“I have followed the issue in The Connexion, because you have been at the forefront,” he said. “I recently quoted you in an article on the subject.
“We couldn’t find any information on the subject in France.”
Mr Poltorak has the impression that French officials and MPs, like many non-international specialist notaires, might be “overwhelmed by the technical legal aspects” involved.
Also, at present, he said, there are perhaps too many things to deal with at once.
“Personally, I think we’re sending a bad signal to foreign investors by saying that, on the one hand, France wants to be a modern country, but on the other, we don’t understand that there are other people who have different cultures.
“That’s why I hate this law. I don’t agree with it. It’s not the image I would like us
to project of France.”
He believes that the government, in putting forward the law, had probably not sufficiently consulted with lawyers with expertise in the area, who would have told them from the outset that it was not advisable.
“I think it was an error and soon it will be annulled and will be history.”
