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French Wills

BRUSSELS IV : ALL ABOUT FRENCH WILLS

European Regulation No. 650/2012 of the European Parliament of the Council, commonly called Brussels IV, entered into force on 17 August of last year 2015. It constitutes a complete revolution concerning French property law, all over Europe.

 

But it is very important to understand that the United Kingdom has not signed up to Brussels IV, so is not a Member State for the purposes of it.  So, assuming that you are a British national, how does it affect you?  Please see below.

 

Firstly, if you live principally or only in France on a permanent basis such that when you die it can be said of you that "the deceased had his habitual residence in France at the time of his death" the Regulation applies to you. It would also apply to you if, at the time of your death, you had your habitual residence in some other Member State, for example Spain.  The result is that you may choose English law as the law governing your succession as a whole.  Therefore you can make a Will saying that English law, not French law is to apply to the devolution of your French property.  You can thus override the compulsory rights of children laid down in French law, called the compulsory reserves.

 

There is, however, legal debate going on in France as to whether the compulsory reserves fall within 'ordre public' which can roughly be translated 'public policy', with the result that they cannot be overridden. Article 35 of Brussels IV clearly states that 'ordre public' must be respected.  Most Notaries in France incline to the view that the compulsory reserves do not fall within 'ordre public', and that therefore a British national living permanently in France can kick them out.  Note that you have to do this in a Will.  A mere back of envelope declaration "I want English law to apply to the devolution of my French Estate" is not good enough and will not take effect. 

 

The result of all of the above is that I recommend Brussels IV Wills to clients who are habitually resident in France on a permanent basis.

 

But this comes with a warning that the Court of Cassation in Paris might one day conceivably rule that the compulsory reserves are a matter of 'ordre public' in which case your Brussels IV Wills won't work insofar as they disregard your children's compulsory reserves under French law.

 

A second question is whether Brussels IV applies to British nationals resident in the UK who have second homes in France. Many French Notaries are taking the view that it does.  I do not.  I take the contrary view.  I set out my reasons below.

 

The UK is not a Brussels IV Member State. One has to consider what the purpose of Brussels IV is, as stated in the first recital to its preamble :  "Whereas the Union has set itself the objective of maintaining and developing an area of freedom, security and justice in which the free movement of persons is ensured.  For the gradual establishment of such an area, the Union is to adopt measures relating to judicial cooperation in civil matters having cross border implications, particularly where necessary for the proper functioning of the internal market."

 

So the purpose of Brussels IV is to facilitate the functioning of the internal market. It is not intended to make a French Notary apply Chinese law in a case where a Chinese national, resident in Peking, has bought an investment property in Paris.  Next day Japanese law, and next day Saudi Arabian law.  On the day after that, Russian law and the French Notary falls off his chair.  That is not the purpose of Brussels IV at all. 

 

Secondly, one has to look at the internal structure of the Regulation. Article 22 says that a person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.  Article 20 says that the law so chosen does not need to be the law of a Member State.

 

But Article 4 says that the Courts of the Member State in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole. If the deceased dies in the UK, the UK Courts do not have jurisdiction to rule on the succession as a whole under Article 4 because the UK is not a Member State.  Article 10 says that where the habitual residence of the deceased at the time of death is not located in a Member State, the Courts of the Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on those assets.  So where a UK national dies in the UK, having left a second property in France, the Courts of France have jurisdiction to rule on the devolution of those assets but not on the succession as a whole, and so not in accordance with a purported choice of law under Article 22.  The result, in my opinion, is that the French Courts are to apply French law in such a situation, which is what you would expect.

 

So that imposing apartment block near the Champs Elysées owned by a super rich Chinese national who resides in Peking and has never set foot in France devolves under French law. And so does that property in the Dordogne owned by a UK national who lives principally in the UK.

 

For these reasons, I consider that UK residents owning second homes in France cannot make Brussels IV Wills. They must make Wills that comply with the French compulsory reserves in favour of children.  We offer such Wills, worded in a simple, clear manner, at fees which are very reasonable.

 

It will take a Judgment of the European Union Court at Luxembourg to sort this whole issue out for sure.

French Inheritance Tax

Since August 2007, the burden of French inheritance tax has been lightened considerably. In particular, there is no longer any inheritance tax between husband and wife. However, for the time being at least, the punitive 60 % inheritance tax rate on gifts to non-blood beneficiaries remains in force. Note in particular that a disposition by Will to a step-child is a disposal to a stranger in blood that is hit with inheritance tax at 60 %. We advise on French inheritance tax generally.

French Gifts Tax

The rules on French gifts tax are largely similar to but in certain significant cases by no means the same as the rules on inheritance tax. We also advise you on French gifts tax generally.  Note that  French gifts tax is chargeable between husband and wife.

Pacte Civil de Solidarité

This is called a PACS for short.  It means a civil solidarity pact, which is roughly the same thing as a UK civil partnership.   If you have a PACS, the French inheritance tax and French gifts tax situation is exactly the same as if you were married.   You can only have a PACS if you are resident in France on a permanent basis.  A UK civil partnership is recognized in France. 

A PACS can either be between persons of the opposite sex or between persons of the same sex.

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