In relation to the renvoi issue, any personal representative will have power over the French movables, but you might need advice on the transfer of the French immovable.
First let us look at considerant (57)
“(57) The conflict-of-laws rules laid down in this Regulation may lead to the application of the law of a third State. In such cases regard should be had to the private international law rules of that State. If those rules provide for renvoi either to the law of a Member State or to the law of a third State which would apply its own law to the succession, such renvoi should be accepted in order to ensure international consistency. Renvoi should, however, be excluded in situations where the deceased had made a choice of law in favour of the law of a third State.”
It refers to conflict of laws rules, not PIL in general. Renvoi is therefore only tolerated where it is essential.
A Personal Representative cannot be appointed over French land, as the Grant will not extend there. Were it not for the Regulation, the “intestacy” would simply be governed by French law, and the heirs under French law would need to put themselves forward to the French notary to obtain their entitlement. Hence the solution of facility consisting in continuing to use a renvoi.
However, please note that the Regulation does admit an alternative routing, as English law prior to the consolidation from 1893 to 1925 did and still does not require a renvoi to French law over French immovables, as there is now no conflict between the principles of transfer defined at article 22.2 (g) of the Regulation. Why? Pre-1893, the English common law rule at to the transfer of real property ( which under re Berchtold are immovables) was that of direct seisin - le mort saisit le vif - and the English consolidation is expressed in statute to only apply to England and Wales, with the old common law rule remaining unrepealed in relation to foreign immovables.
Under the Regulation, this is a unitary issue, not a scissionist issue.
Habitual residence allocates the matter to English law alone, unless there is a conflict requiring the resolution of that conflict under article article 34 (1). Here there is none, so you are able to apply English intestacy rules under article 22.2 (g).
Article 22.2 (e):
“(e) the transfer to the heirs and, as the case may be, to the legatees of the assets, rights and obligations forming part of the estate, including the conditions and effects of the acceptance or waiver of the succession or of a legacy;”
“e) le transfert des biens, des droits et des obligations composant la succession aux héritiers et, selon le cas, aux légataires, y compris les conditions et les effets de l’acceptation de la succession ou du legs ou de la renonciation à ceux-ci;”
Article 34
“1. The application of the law of any third State specified by this Regulation shall mean the application of the rules of law in force in that State, including its rules of private international law in so far as those rules make a renvoi: …”
“1. Lorsque le présent règlement prescrit l’application de la loi d’un État tiers, il vise l’application des règles de droit en vigueur dans cet État, y compris ses règles de droit international privé, pour autant que ces règles renvoient: …”
There is no point in setting up PIL obstacles where no conflict exists under the unitary perspective. In fact the Regulation reduces renvoi a mere tool, not a matter of substantive law and does not require it to be applied as if it or PIL were an overriding principle. If you wish the rules of English intestacy to apply, please contact me and I will give the full reasoning in an opinion in French to enable the notary to proceed.
Peter Harris
www.overseaschambers.com