The Notaire who is called upon to settle an international succession is often confronted with a certain number of questions, one of them being the validity of a Will left by the deceased. Making a Will is the most common way for a person to settle his estate and transfer his assets to his heirs. For instance in of common Law Countries (United Kingdom, Unites States...) it is most of a time a testamentary succession.
I recently read on various social media posts that English Wills were not valid in France before the introduction of the European Succession law in 2015 or that making a Will under article 22 of the European succession Law is an international Will. We should be attentive to articles or comments we read as it becomes source of confusion, misinterpretation and could lead to an incorrect understanding of the Law.
The difficulties relating to the validity of a Will and its form are very rare in practice: The reason is that the convention of the Hague of 5th October 1961, Convention on the Conflicts of Laws relating to the Form of Testamentary Dispositions , ratified by many countries, including France in 1967 and United Kingdom in 1963, is dominated in the favour of the validity of the will, and it is exceptional that the form adopted does comply with one of the cases listed in Article 3 of the Convention.
Under this article:
A testamentary disposition shall be valid as regards form if its form complies with the internal law:
a.of the place where the testator made it,
or b.of a nationality possessed by the testator, either at the time when he made the disposition, or at the time of his death,
or c.of a place in which the testator had his domicile either at the time when he made the disposition, or at the time of his death, or d.of the place in which the testator had his habitual residence either at the time when he made the disposition, or at the time of his death,
or e.so far as immovables are concerned, of the place where they are situated.
Once you have discerned that wherever you are you can make a Will that will, in most of the cases, comply with the Hague convention and be accepted by any jurisdiction (except maybe a few countries with some particularities regarding the form of a Will), you now have to decide which form of Will to use.
We know that in England a Will is dactylographic, signed by the testator in the presence of two witnesses. France, unsurprisingly, is more inventive with 3 forms of Wills that can be chosen by the testator. In practice 2 of them are very common, the holograph will and the authentic will, the third one less popular:
- The will is "holographic" when it is written, dated and signed entirely by the testator. It does not need to be witnessed and it can be written in French or any other language. Indeed, when you deal with French estate it is always recommended to have it written in French for ease of the Notaire.
In addition, it is strongly recommended to file the Will with a Notaire who will register it with the central index in France to trace it after your death. The
original Will is kept by the Notaire who registers it and will be opened and register after death by the same Notaire.
- The testator may also choose the authentic will. The "authentic" will is written by the Notaire himself, under the dictation of the testator and in the presence of two witnesses, or received by two Notaires.
When a testator is unable to write his Will, this is probably the safest way to transcript his wishes in a Will. The authentic Will has the same â€œforce probanteâ€ as a title deed and is rarely challengeable.
However, it may happen that one of the formalism required by articles 971 to 975 of theCivil code has not been respected, making the authentic Will null and Void.
This is where the High Court of Justice recently came to the rescue of the Authentic Will to validate it as an International Will instead.
International Will seems to be a word that is complex because we would not know how to apprehend it.
Is a Will considered as international because it includes an asset in a different country, or drawn up in a different country from the testator residency?
The international will was created by the Washington Convention of 26 October 1973 and introduced in France on 1 December 1994. Only 13 countries have ratified the Convention (France, Belgium, Italy, Ecuador, Canada, Croatia, Cyprus, Libya, Niger, Slovenia, Bosnia and Herzegovina, British Colombia and Portugal)
The characteristics of the international Will make it a very interesting tools but not often used or recommended.
- The international will may be written by the testator or by a third party, or even typed. Thus, it can be used by people who are physically disabled or illiterate.
- The text may be written in any language, even if that language is not understood by the lawyer instrumenting it and the witnesses.
- The international will require, in France, a Notaire and two witnesses. Witnesses may be French or foreigners, however, they must necessarily understand the French language, be of age, know how to sign and have full civil capacity. On the other hand, husband and wife cannot be witnesses together. As far as the Notaire is concerned, he dates the will, prepare a certificate in two copies (one for the testator, the other intended to be attached to the will) indicating that the
formalities of the international will have been completed.
The international Will remains rare in practice and would be used in the presence of a disabled or illiterate person, expats who do not speak French or for people
who cannot use the holographic Will. Notaires have not really promoted this estate planning tool, certainly because French law offers other options that they are more familiar with.
I cannot finish this article about Wills without pointing out the importance to have a Will in place for your assets, especially in FRANCE. Most of our readers
on this group have a second home in France or reside there for a certain period of time. How many times I get requests for information about drafting a Will
but without any follow up.
You have clients with complicated situations who would like to ensure that their estate is sorted out after their death, in most of the cases to provide the surviving spouse with protection, or, as it often happens to disinherit estranged children. My aim is not to recap the full devolution of an ab intestate succession under French law but just to remind you that a surviving spouse, in the presence of children from a previous marriage, will only be allocated Â¼ of the deceased's estate. The balance being inherited by the children. As a result the surviving spouse and children will be in co-ownership, making life potentially difficult for everybody regarding the administration, management and disposal of the property.
Couples with common children will be more protected by benefiting from a life interest over the deceased's estate. However, the life interest does not give you full control of all the assets and children could still be difficult.
Finally it was common a few years ago to purchase a property with a Tontine clause, transferring the property to the survivor after the first death. That is a good structure, but what about the rest of your assets? They will not be covered by the Tontine. Lawyers know by experience that relationships can deteriorate rapidly after death and succession can end before the Court to be settled.
Making a Will can overcome any conflictual situation, notably since the European succession law came into force in France in August 2015. As British national, you now have the possibility and advantage of solving your problems, sharing your assets without any restriction, overruling French Civil Code and French
heirship. Some of you might be doubtful with the recent Johnny Hallyday's case and still think that French law will not permit the children to be disinherited. Johnny Hallyday's case is all over the news and I personally think that he did not receive any advice to make his Will, hence the actual conflict with his children. Another recent similar case confirmed that a Will made elsewhere than in France and disinheriting children was not contrary to international public policy in France, and perfectly valid.
Making a Will will take from you a couple of hours of your life, hours that could prevent you from spending years of judicial proceeding before the Court, stress and conflictual arguments with heirs.