Notaires 'confused' on French inheritance law change

Poor communication of the government’s recent clarification of inheritance law is leaving many notaires still in doubt, Connexion readers report.

As a result, campaigners are urging those affected to lodge new complaints with the EU, while the director of a leading notaires’ technical advisory body says he stands ready to help clarify the rules.

How the inheritance law was changed

The long-running issue concerns estates where foreign inheritance law applies – either because someone dies abroad leaving property in France, or because a foreign national has chosen the law of their nationality in their will.

Under EU rules, the law of the deceased’s habitual residence applies to the whole estate unless they have validly chosen another law.

The situation was complicated in 2021 when France introduced a rule (Code civil, article 913, line 3) concerning estates governed by a foreign law that does not provide protections comparable to France’s reserved portions for children, where the children have not received comparable amounts.

Where the testator or at least one of their children was an EU resident or citizen, the notaire handling the estate must contact the children to offer an optional ‘compensatory levy’ from French-situated assets.

This was widely seen by lawyers to be clashing with EU law and prompted many complaints to the European Commission, especially from British couples hoping to use their more flexible national inheritance laws to leave everything to the surviving spouse.

In June, the commission published a ‘pre-closure’ letter quoting explanations from the French government that significantly clarified how the 2021 rule should be interpreted.

France said foreign laws do not need provisions identical to French fixed heirs’ portions: it is sufficient that they contain some protection for children. It specifically cited the ‘family provision’ rules found in English and similar ‘Anglo-Saxon’ laws as a ‘functional equivalent’. These allow certain children left in financial need to ask a judge for provision from an estate.

As this is a clarification, not a change in the law, it should apply now, including to estates still being administered. Where estates have already been settled under stricter interpretations, court cases might follow if there are disputes within families.

The French government promised the commission it would publicise its explanations. So far, this is limited to a note on the final page of a June newsletter to the legal professions, linking to the commission’s pre-closure letter, and a similar addition to a Service-Public page titled ‘Can we disinherit our children?’.

The latter notes, usefully, that the letter “clarifies how the right to a levy is interpreted and applied by the French authorities”, though it appears to imply the rules apply only to non-residents, which is not the case.

The commission said it would publicise the clarifications in the inheritance in France section of its e-Justice website. So far, it has appeared only in a general introduction to inheritance in the EU – and only in the English-language version of the site.

Notaires remain uncertain over the rules

Campaigners Trish Miller and Ronnie Bennett, who report several cases of notaires saying they cannot apply the clarification because the government has not sufficiently communicated it, are lodging fresh complaints. Readers wishing to do so can contact them at mywillmyway64@gmail.com. We are also interested to hear from those affected at feedback@connexionfrance.com.

They can also read the pre-closure letter and make a submission at tinyurl.com/complain-eu-c, citing continuing legal uncertainty for citizens and legal practitioners, given the limited publication of the clarifications. Do not say the complaint concerns a ‘one-off’ situation, and state that your objective is for EU legislation to be applied properly. It is not necessary to write in French.

Brian and Naomi Key, from Deux-Sèvres, report that their notaire, with whom they lodged wills electing English law, says he lacks formal confirmation of a “verified change in the law” and he would therefore enforce the 2021 rules if either of the couple were to die.

We have emailed the notaire asking what confirmation he would require.

Mr Key, 76, a former health service administrator, said: “When the EU regulation came into force, we thought everything was sorted, but the new law put us into a quandary. Now our notaire says there’s been no change.

“The government doesn’t seem to want to own the fact that there was perhaps a lack of foresight, and unintended consequences. Rather than saying mea culpa, they seem to be changing things in a very quiet way – trying to sneak it in by the back door.”

Another reader, who asked not to be named, reported “very mixed reactions from local notaires” after her stepfather died leaving everything to her mother, rather than to his daughter with whom he had had no contact for years.

“They seem reluctant to take a risk as long as, they say, the system hasn’t been made clear to them. My mother needs the inheritance for her care.”

Notaires’ governing body the Conseil supérieur du notariat told us it has yet to take a “definitive position” and discussions are continuing.

We also emailed France’s five CRIDONs, which advise notaires on technical legal issues, including those with an international element.

David Boulanger, director of CRIDON nord-est (cridon-ne.org), said his position is clear and he is willing to provide clarification to readers or their notaires who remain in doubt.

Asked how he would advise a notaire whose client’s English spouse had died leaving them everything, despite having children in the UK, and having chosen English law, he said: “I would tell the notaire that the compensatory deduction under article 913 line three does not apply.

“Furthermore, it seems to me that English law does not require the children to be informed; consequently, in my view, the notaire is not under any such obligation either. Only the spouse is involved. Of course, a notaire who knows that a child is considering making a claim must remain cautious.”

He said he could envisage cases where a notaire might advise clients to go to court to obtain a ruling, typically where the ‘levy’ rule applies, because there is nothing protective in the foreign law, or where the notaire is uncertain and the parties cannot agree on the right to a levy or its amount.

He said he was not referring to cases involving English law, which was named by the French government.

Questions remain over the laws of many US states, which do not appear to have rules similar to ‘family provisions’, with the exception of Louisiana, where there is a form of hereditary reserve.

Mr Boulanger said laws likely to be covered include those of Scotland, Northern Ireland, Ireland, Australia, New Zealand, and the nine Canadian provinces with common-law systems.

The clarification still requires notaires to be able to assess the position under any legal system in the world.

“This is a major undertaking in comparative law,” he said.

In view of the complications for notaires, Mr Boulanger said he hopes France will instead consider repealing the 2021 law.