Why have French notaires said my husband’s UK will is not valid?

John Kitching, a director of French Law Consultancy Limited, answers a reader query

Countries which have signed up to the Hague Convention have different rules surrounding wills
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Reader Question: My husband died last year. He had a UK will leaving his worldwide estate to me and, when I die, to our children. We live in England and have a holiday home in France. My notaire says the will is not valid in France as it was signed by two witnesses and that it has to be handwritten. Is this correct?

I have heard of this happening before.

While it is true that a handwritten will is valid for France, if it complies with article 970 of the Code Civil, a valid UK will by a UK national or signed in England and Wales is also valid in France, as agreed by France and the UK under the Hague Convention of October 5, 1961.

According to Article 1 of that convention, a will is considered valid if it complies with the domestic law of the place where the testator had his habitual residence or nationality.

The exact wording is as follows: “Under the Convention, a testamentary disposition shall be valid if its form complies with the internal law of either: the place where the testator made it; a nationality possessed by the testator; a place in which the testator had their domicile; the place in which the testator had their habitual residence; concerning immovable property, the place where the property is situated.”

Read more: French inheritance law: EU contacts France over ‘possible breach’

The UK will should be valid in France

If the will was made in England, where the deceased lived, it needs to be valid under English law.

Likewise, if it is made by an English national, a valid UK will can be used, even if it is signed in France.

The will’s validity under English law is governed by Section 9 of the Wills Act 1837. This requires that the will is signed by the testator, and it appears by signing the will that it reflects his wishes.

The signature must be witnessed by two people.

If the deceased’s will is valid under English law, it must also be recognised in France under the Hague Convention.

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