UK Wills Property in France


(kathryn.caple) #1

I have a client who is buying a holiday property in France en division with his wife. He wants to simply update his UK Will to include a specific provision for the property there and is happy to accept the French forced heirship rule that 50% of his half share will pass to his daughter and the other 50% to his wife. He has received some advice from an estate planner that he should really be preparing 2 UK wills - one to deal solely with the French property and one dealing with the rest of the estate. I have not come across this before - is this something which is legally advisable, or is it coming more from an administrative point of view in that having 2 Wills will allow both the UK and French estates to be dealt with simultaneously?
Thanks!

Kathryn Caple
Else Solicitors


(iain.cameron) #2

It is more usual to make two Wills, one in England and Wales and one in France, each dealing with immoveable property in that jurisdiction. It is vital that the one second does not revoke the first. It is (currently?) possible to choose the law of England and Wales to prevail over the local law in other EU countries, by invoking what is called the Brussels IV convention.

Iain Cameron
Star Legal


(Peter Harris, Barrister, Overseas Chambers ) #3

The actual drafting of the will for the French situs assets is important, as the choice of British nationality implicit in Iain’s position raises the old hoary chestnut of whether an English executor has any status in France to have the necessary possessory rights to call in the property and then allocate it. Put simply no such procedure exists, and the Regulation cannot invent one.

That process is not covered in the Regulation itself. and under the 1925 consolidation, designed specifically for territorial application within England and Wales, as opposed to Scotland and NI, the English courts have no jurisdiction either over the French asset, nor for that matte over any executor attempting to administer a French immovable à l’anglaise in France.

I discussed this issue with the Directrice of the Centre Notarial de Droit Européen at a European Commission Conference in Brussels in 2016, and she agreed that, as English law prior to 1897 was based on the Anglo-Norman principle of direct seisin, or le mort saisit le vif, without the interposition of an executor, that principle under the unitary rule in the Regulation, meant that the direct seisin principle could still function over property outside the territorial scope of the English legislation, and that the English will itself, without needing probate as to the land, could be translative of the French immovable property under article 23.2.(g) without any executor.

The 1897-1925 legislation only overrode the English common law in relation to English realty. Note that the Scottish principle of direct seisin was not changed by the Real Representatives Law, being Part I of the Land transfer Act 1897. It was not expressed to override any existing common law principles on land outside the stated jurisdiction of Parliament or for that matter the English courts.

It is very important not to get the various aspects of private international law and conflict in a twist, and then wrongly allocate powers through principles that do not apply. The fact that the English Courts do not have jurisdiction over foreign immovables is a matter of their jurisdiction, not, fundamentally, of classification. As the Regulation in fact removes those aspects from the equation, by allocating jurisdiction over the assets to the French Courts, if applicable, it is English law as a whole that applies, and as there is no rule of private international law overriding the general principles of English direct seisin / le mort saisit le vif, then that principle applies. That proposition is born out both in Dicey’s immediate commentary following from the 1897 legislation and in Megarry’s Law of Real Property Third Edition on the position prior to the 1897-1925 Consolidation. The relevant pages are on my website at www.overseaschambers.com for those without the paper publication. There is nothing new here, it is just writing out the law as it was and remains, not as it has been theorised to have become.

You should note that Professor Jonathan Harris, whilst supporting the position on jurisdiction, is less sanguine on the direct seisin approach, but then it is a European Regulation from which the British civil service and the accompanying cohort of British academics were removed prior to the finalisation of the proposals.

I have seen three conveyances of Parisian immovables successfully through this process with a French notary, which involved a certification as to English law, attached to the conveyance in French, and I can assist here in drafting both wills to prepare that process. The opinion is on the title deeds, and the French tax administration which administers the registry has therefore seen it.

I stress that the tendency to assume that an Executor is a sine que non, is not born out by the law, which in fact still enables a swift and simple process when placed within the expressed unitary, not scissionist or dualist framework of the Regulation.

I note that certain English authorities have stuck to the scissionist ideal in analysing the position, and have lost their compass amongst the rocks and eddies of scissionist jurisdictional principles and renvois which are deliberately excluded by the Unitary jurisprudential approach of the Regulation. It is clear that the French assets, movable and immovable will fall firstly within the French competence under the jurisdictional part of the Regulation, not under that of the English courts (these Post- Brexit will undoubtedly be a third state’s courts). It is only then that the French jurisdiction will look to the English law as either being that of the habitual residence, or by specific option, that of the nationality. For these purposes the renvoi issues relegated to the fall back dispositions of article 34 (1) and extinguished under (2) are irrelevant. Under the unitary scheme of the Regulation, if English law permits, as it does, foreign immovable to pass directly under article 23.2.(g) without interposing the obligation to interpose an executor, falling back to the direct seisin principle in the case of a choice of nationality, the renvoi issue is entirely superfluous and little more than a red herring.

Nothing stops you relying upon the French notary choosing to advise that French law as to forced heirship can apply under the renvoi in article 34(1), in ignorance of English law, if you wish to abuse the mechanism, but you might find it better in your case to go for an outright clear disposition using English law as you are perfectly entitled to do. Note that, were the testator to retire to their secondary home in France on a permanent basis, you would need the Nationality option in place.

Once the different layers of PIL and conflict are deconstructed, and the rules assigned to their purposes, the issues become simple and clear.

The initial German report on the proposal clearly indicated that the rules of PIL and Conflict in each Member State were so disparate as to render any attempt to classify these coherently a labour of Hercules.

Hence the need to simplify from the basics, and to draft what in effect is a clear and unambiguous statement of testamentary intention.

Hope this helps,

Peter Harris

www.overseaschambers.com


(PETER DOUBLE) #4

I think what Peter Harris is trying to say, is that the French property is governed by French law. This means your client should consult a French Notary to deal with the French property, by means of a French Will. England is not part of Brussels IV so care needs to be taken. The English Will should state clearly that it does not deal with the French situs assets and should also state where details as to the French Notary may be found (this could be by a letter attached to the English Will).
As already advised you must make sure there is no conflict between the English Will and the French Will. There is no reason why the English Will cannot confirm what is provided in the French Will if for some strange reason French law eventually provides that the French property is governed by English law. This long stop provision also needs to be carefully drafted.
Has any thought been given to having the French property owned by an English company, as then on death the deceased instead of owning the French property will only own shares in the English company, which shares are therefore governed by English law?
Peter Double / Probate Resealing Services


(Peter Harris, Barrister, Overseas Chambers ) #5

No Peter that is not what I wrote at all, nor for that matter what I was intending to put over.

French property on succession is now governed by the Regulation, which applies the unitary law of the Habitual residence, not domicile, of the deceased at the time of death, unless the testator has opted for the law of their nationality to govern it. French law no longer governs French immovable property in succession matters unless the Regulation says so.

The testator here is resident, habitually, I assume within the United Kingdom therefore one of the United Kingdom laws will apply to the French property, unless an option for nationality is made.

My point was, and I hope that this is clear, is that any renvoi provisions are strictly limited by the Regulation, and only apply where the law governing the transfers to the heirs under article 22.2(g) does not require a renvoi to put the property directly in the hands of the legatee. Most European laws recognise the principle of direct seisin over property. I was simply pointing out that English law, in a unitary perspective, has and continues to provide for direct seisin to foreign immovables, without a renvoi, in the Regulation context of a now unitarised, not duallist succession. That approach is European-wide, not an English one.

The English Courts will not address a foreign immovable property on a jurisdictional basis, and use a scissionist methodology to decline jurisdiction in realty matters. However once there is an EU immovabel in asuccesion, the position of the English Courts as to jurisdiction by situs or person is in fact irrelevant to the Regulation. Whilst that does not stop the English Courts forcing a trust through on a personal basis, if the individual concerned is within the UK Court’s jurisdiction, any Will Trust set up will fall immediately foul of the hostile French article 792-0 bis CGI, and an executor of trustee of that will is faced with a very expensive future. That is a very good reason for avoiding an English law will over both English and French immovable property.

That is several steps beyond the simple analysis which you have made, from Hong Kong.

If you wish to put forward your own opinion separately, please do so, but kindly do not call me in aid avec un procédure d’intention.

Peter Harris

www.oveseaschambers.com