25/04/2020 0 Comments
CHOICE OF LAW TO AN ESTATE
For nearly five years (since 17th August 2015), international private law regarding succession has come into force in the 27 countries of the European Union that have ratified it. However, there are still some interrogations necessary. If choosing the law that is applicable to your estate is possible, then the European text also provides for an implicit choice which must be used with precautions
For nearly five years (since 17th August 2015), international private law regarding succession has come into force in the 27 countries of the European Union that have ratified it. However, there are still some interrogations necessary. If choosing the law that is applicable to your estate is possible, then the European text also provides for an implicit choice which must be used with precautions.
The law applicable to the settlement of the deceased’s estate may result from the choice of law made in a will before or after 17th August 2015 (express choice). It may also result from the stipulations of the will itself (implicit choice). Indeed, some wills may carry out a choice which will be implicit. This is the difficulty encountered by a lawyer, whether they are a Notaire or any other type of lawyer in the EU, when it comes to considering and validating the dispositions made by the deceased or the interpretation of the will.
When you write a will, you need to consider whether the choice of law is essential or not. A person who has no children may not need to make a choice regarding the law because French law is more flexible when you do not have children. However, the deceased, for personal reasons or because of the culture of his country of origin, may have designated, as the law applicable to their succession, the law of their nationality.
Recent surveys have shown that more and more foreigners are purchasing property in France or deciding to relocate to France for work purposes, a change of life or retirement. When you move to a new country, you pack up everything that you own and take it with you. The “everything” includes your will, lasting power of attorney and any other legal document that you may have signed in your country of last residence. Do these documents still apply when you are on French soil? A different residency does not entirely mean that any former legal documentation will be void. However, it does not mean that they may fully apply like they would do in your previous country of residence. It is for this reason that we have E.U regulations like
the Hague Convention to solve these problems and to ensure that, where possible, a document can be transported and executed abroad.
I will review the will situation because I have read so many posts on social media from different people affirming that an English will or any will outside of France is invalid when you move to France. There are also statements saying that it is invalid because of Brexit or for any other reason that they can find.
I have written an article regarding the validity of a will in France (Wills in France - Aug 2019). The purpose of this article is not related to the provisions of any convention validating wills. Instead, I would like to use a different approach to the content of a will, regardless of whether it is made abroad or in France.
As I said above, when you read a will, the testator may have made a choice of law or provided similar information within his will that implicates a choice of law. The first choice (express choice) is easy to comprehend because it results directly from the testator himself. He made the choice. The second option (implicit choice) is more complex because the choice may be formulated in the terms of the will.
Whether you have an express choice or an implicit choice, the question of the date of the choice may be important for the validity of the will. The EU regulations came into force on the 17th August 2015 and this is the key date used to determine the validity of the choice made in a will.
The express choice
The express choice made after the 17th August 2015 is provided in article 22-2 of the regulation: The choice shall be made expressly in a declaration in the form of a disposition of property upon death (…)".
The provision made prior to 17th August 2015 is provided in article 83-2 of the regulations: “ Where the deceased had chosen the law applicable to his succession prior to 17 August 2015, that choice shall be valid if it meets the conditions laid down in Chapter III or if it is valid in application of the rules of private international law which were in force, at the time the choice was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed.. "
This article therefore allows for the retroactive validation of a choice of law prior to the 17th August 2015 under the condition that (1) the choice is the national law of the testator and it is formulated in a will or (2) it results from an international private law in the country where the testator has resided or is a national of. To give you two simple examples: an English person who expressly made a choice of law in his will dated from 2013 will be valid under French law. This complies with the first condition (1). A Dutch person who made a choice of law in 2005 in his will will find that it is also valid in France because Holland, like other countries such as Belgium, Switzerland and Italy have authorised that before the EU regulation was made, it was a matter that was a choice of law in their legislation. Some states in the United States have the same concept (California, for example).
The implicit choice
It is a complex task for a lawyer to determine whether the provisions of a will implement a choice of law, maybe without it being the testator’s intention to do so. In a similar position to the express choice, the implicit choice could have been made before or after the 17th August 2015. It is a position that is often encountered in our daily work because we potentially try to avoid the subject. It is simpler to have a testator write a will and to make a choice of law, when and where possible, to deal with his estate. It is clear without any interpretation or confusion over which law should apply.
Nevertheless, some people may not have the time to write a new will or they think that it will follow the law of their nationality or country of residence. In that case, the presentation of a will may require some clarity before taking any further steps.
The implicit choice is defined in point 39 of the Regulation:” A choice of law should be made expressly in a declaration in the form of a disposition of property upon death or be demonstrated by the terms of such a disposition. A choice of law could be regarded as demonstrated by a disposition of property upon death where, for instance, the deceased had referred in his disposition to specific provisions of the law of the State of his nationality or where he had otherwise mentioned that law “
The lack of clarity regarding the choice or the ambiguity that it can lead to is a hazard when in reference to the recognition of validity in its form. The regulation aims in favour of the recognition of a provision but not to the extent where any interpretation would be valid.
For instance, in the case of a will drawn up in English, do we consider that English law should apply? The English language is used in England, the United States, all Commonwealth countries and some African countries. The language can constitute an indication of which law could have been chosen but it is certainly not an index to validate a choice of law.
Would the use of tools such as trusts be an indication that the testator wanted to apply one specific law more than another to his estate, either in his country of residence/origin or elsewhere? It is prudent to verify that the jurisdiction determined to deal with the estate, which will have to assess the validity of the implicit professio juris, is under the jurisdiction of the state members or if it is a third state whose internal law recognises the possibility for the deceased to have operated before his death to indicate a choice of law. In simple terms, the lawyer who is assigned to the estate to identify the indications of the will may lead to an implicit choice of law. It may also expose in any legal document the detailed reason for interpreting a will with a particular implicit choice.
So far as the wills made before the 17th August 2015 are concerned, they are governed by article 83-4 of the regulation:” If a disposition of property upon death was made prior to 17 August 2015 in accordance with the law which the deceased could have chosen in accordance with this Regulation, that law shall be deemed to have been chosen as the law applicable to the succession”.
In other words, could a testator be aware of the choice of law available when he signed his will so then the implicit choice would be validated? It is difficult to have a positive answer to that question. Someone in Europe who signed a will in 2010 would certainly not know that an EU regulation would be voted for in 2012 to apply across Europe in 2015. An implicit choice of law would probably not be recognised in any state members’ jurisdiction, except maybe Germany or Switzerland, who recognise such an implicit choice.
The common case of an English will and the implicit choice of law resulting from such a document has been recently discussed. The form of the will, i.e. in English and dactylographic, cannot be considered as sufficient elements to demonstrate that the testator wanted to apply English law as the law applicable to his estate, neither does the reference to “the provisions of the Society of trust and estate practitioners. To date, there is no case law on the subject but practitioners tend to agree not to use those elements.
The position of a notaire, or any lawyer in the EU, is to recognise, interpret and validate their clients’ wills upon death. The aim of the EU regulation was to make uniform the settlement of an estate so then it is governed by a unique law. However, if we cannot identify which law should apply because we have doubts over the interpretation of the will, then we will need to go backwards and revert to the international private rules that were applied before 2015. Otherwise, the case will end up before the Court, freezing the settlement of the estate and creating tension and conflicts between the potential beneficiaries.
I think that the bottom line is to have a provision in place, either in each country where you own assets or under one will that will deal with your overall estate. Whether you are English, German, French or Australian, the EU regulation and the various Hague Conventions offer excellent tools to allow for a legal document to be drawn up that can be used in different jurisdictions.