Will estranged grandchild inherit part of my father's French estate? - Partner article

Reader Question: My father lived in France and died last year. His will left everything to me and my sister. 

We also had an estranged brother, who died years ago of addiction issues. He has a child, now in his 30s, who also has lifestyle complications. 

The notaire says that this grandchild inherits part of the estate. Is that true?

As your father died a French resident, the default situation is that French law applies to his estate. 

Under French law, the notaire is correct that each child is a reserved heir. 

In the case of three children, then the reserved heirs are entitled to inherit three quarters of the estate between them, so a quarter each.

The remaining quarter can freely pass in accordance with the terms of the will.

As one of the children has died and is survived by their own child, that child (grandchild of the deceased) steps into the place of their parent, and is entitled to inherit the quarter that their father would have inherited.

So, under French law, the reserved heirs of the estate would inherit as follows: a quarter to the grandchild (in place of his predeceased father), a quarter to you, and a quarter to your sister. 

The will then additionally leaves the remaining quarter equally between you and your sister.

All hope is not yet lost though – it is possible that your father’s will had an implied or express election of another country's law (eg. English law if he was from England). 

If that is the case, then the EU succession regulation 650/2012 would allow the will to take effect under English law (which does not have reserved heirs).

France, however, has interfered with that with a new law as of November 2021, but any 'compensation' that may be claimed by 'reserved heirs' can only be demanded in relation to assets situated in France. 

Keep your eye on Connexion reports, as the EU Commission has been dealing with complaints made against France in this regard, and a decision is expected shortly.

If there are assets outside of France, then the terms of the will (if it has a valid election of English law) take effect in relation to the non-French assets. 

That could then, for example, leave the UK assets to you and your sister, as per the will, rather than shared with the grandchild.

You will need expert international legal advice to see if the drafting of the will represents a valid election of foreign law, and what the effect of that is, plus any possible problems to be navigated.

John Kitching is a director of French Law Consultancy Limited