Article 83 Brussels IV

Deceased resident in France, British national, English domicile.

Wondering whether a 2008 UK Will (the only Will) made ‘in respect of real and personal estate in the UK’ could take effect as a deemed election to the law of England and Wales under Article 83(4) Brussels IV given that it is a disposition of property upon death made prior to 17 August 2015 in accordance with the law which the deceased could have chosen in accordance with Brussels IV?

Very grateful for the thoughts and any experiences of the forum.

Many thanks,

Katherine Wainman

If I may be permitted to piggyback off Katherine’s query, I wonder what members think of a situation where a will was made in 2006 which dealt exclusively with French Property. deceased UK domiciled and resident. A will made by testator in 2007 explicitly revoked ALL former wills and testamentary dispositions.

Testator then made another will in 2015 which states " I declare that my will shall affect my property of every kind except that property which is situate in the USA and in France and I HEREBY REVOKE all former wills and testamentary dispositions made by me to the extent that and so far only as they affect my property of every kind wheresoever in the world except the USA and France and I FURTHER DECLARE that the proper law of this my will shall be the law of England and Wales.

Our reading of the situation is that the French will is revoked and we are dealing with an intestacy as far as the French Property is concerned. The lex situs is France and French Intestacy law should apply. One question that comes to mind is whether the declaration that the law governing ‘this will’ then extends to property which is outside of the scope of the will and acts as an election to have French intestate property dealt with according to the laws of England and Wales.

Would appreciate any members’ views.

Michael McCabe
Heath Square Private Client.

Michael, I agree with your conclusions. The election is not for the whole of the estate, as required by A22. Without such an election, renvoi is not excluded (A34) so France should accept that French law applies to the French immovable.

As there is no renvoi of the (French) movables, France will consider the succession to those to be governed by the law of habitual residence, England.

Christopher Salomons

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