Accordingly, in the words of our French contact, as from 1 November 2021, the new French civil code article will read: The particular concern seems to be that an international individual with French links might wilfully circumvent French rules that guarantee a portion of the estate to the deceased’s children. The new positionĬlearly, however, certain parts of the French legislature consider the EU rules that oblige French authorities to apply the succession laws of another jurisdiction too far reaching. Whilst far from perfect, the above rules at least mapped out routes an Anglo / French individual could take to increase certainty in their succession planning. In practice this would probably be resolved by an English legal expert providing an opinion upon the hypothetical operation of English succession law to the French lawyers involved. Instead, the French courts would be obliged to apply English succession law to the French real estate, regardless of the position of the English courts. Using the same facts above, if that English person had made a nationality election for English law to apply their worldwide estate (including the French real estate), EU law would not allow the French courts to accept the English courts’ referral to French succession law for the French real estate. Whereas if an individual had made a valid nationality election for a certain succession law to apply, EU law would not allow the referral, presumably on the basis that the individual had made a conscious choice for one succession law to apply to their worldwide estate. For example, if an English person owning French real estate died habitually resident in England, although EU law would initially indicate that the French real estate should devolve under English law, when English law referred this back to French law, French law would accept this. However their real estate will devolve according to the law where each piece of real estate is located.ĮU law was prepared for this clash where the international individual had not made a clear nationality election for English law to apply but nevertheless died habitually resident in England thus meaning these EU rules applied somewhat by default, the EU jurisdiction in question would accept the referral back from English law. English law states that an individual’s worldwide estate will devolve under the law of their domicile as to their worldwide movable property. Secondly, English law distinguishes between types of property, ‘immovable’ being essentially real estate and ‘movable’ being everything else. English law** instead firstly applies the test of ‘domicile’ (a different test to long term residence – it is driven by case law and could be described as the one place where the individual can be proved to have had a permanent or indefinite intention to locate to). With the UK not being subject to this EU law, English law does not always mesh perfectly. long term) resident in England, EU law dictated that English succession law would again apply to their worldwide estate (including their French estate). Alternatively, if that individual never made any such nationality election but died habitually (i.e. Prior to the passing of this French law, under EU law an international individual with French and English* links and UK nationality could elect for English law to apply to their worldwide estate. This can often cause issues for British families who own property in France and the situation looks set to become more complicated. However, many European countries, including France, operate a system of “forced heirship” which dictates and limits the extent to which an individual can freely dispose of their estate. Under the laws of England and Wales, all individuals have testamentary freedom and can leave their estate to whomever they choose under the terms of their will.
Our well regarded French contact* has warned us that a new law just passed in France is going to cause problems for Anglo / French succession planning.