May a notaire refuse certain work in France?
Can a notaire refuse work? I have been told of a case where a notaire would not deal with settling the estate of a family member who had died because he thought it was not worthwhile due to the low value involved. Someone else I know asked a notaire to draw up a will for her estate which includes a house in Romania but the notaire refused saying it would be complicated and not worth it for him. H.T.
Honorary avocat Gerard Barron from Boulogne-sur-Mer said that, although a notaire is on the one hand a state official, he or she is also a member of a profession libérale and may refuse to act in certain circumstances.
These include where he or she considers the work requested requires particular knowledge which they may be lacking, where the instructions conflict with the notaire’s personal beliefs, where there is a risk of a conflict of interest or more generally where the notaire considers it would not be in the best interests of the client or the notaire to be involved in a particular matter. Included in the latter category would be a refusal to act where the notaire’s office is unable to deal properly with new instructions because of the existing pressure of work.
One might assume notaires could also be tempted to refuse to deal with low-value estates due to the fact that most of the tasks related to this work are billed at an official set percentage rate of the estate.
However Mr Barron said a refusal should not be based on discriminatory grounds and in principle should not be motivated by the size of the fee, although it may be hard to prove unless the notaire clearly stated so. If that was the case one could refer the matter to the president of local professional body the chambre départementale des notaires who can appoint a member to investigate as an issue of professional conduct.
He added: “With regard to the Romanian house, if the notaire felt it was beyond his level of competence, he was right to refuse the instructions but for a simple will I don’t see what the problem could be.”
Under the latest EU regulations, French law would apply to the whole estate, including the Romanian house, if someone is a resident in France, or otherwise they may choose the law of their nationality.
However, if the person wanted the notaire to also take responsibility for dealing with the future succession after the person’s death, then that would at that point require liaison with a Romanian notaire for the transfer of the property to the heir/s.
Mr Barron said: “The Romanian system is similar to the French and a notaire there would definitely have to be involved but most of them can speak and write in French. “If the notaire here does not want to be involved with drafting the will then there is nothing to prevent the person from writing her own will by hand, to be signed and dated, clearly stating her wishes.”
