The first cases to challenge the effects of France’s controversial 2021 inheritance law are now being heard by French courts.
It comes as the lawyer in one of the cases – and campaigners against the law – are calling on more people affected to come forward to bring similar cases, in a bid to persuade the French government of the need to reverse the law.
The 2021 law demands that notaires settling inheritance matters in France contact the children of the deceased to offer them a ‘compensatory levy’ out of any French-situated estate, in cases where a foreign inheritance law is set to govern the share-out of the estate and where French forced heirship rules have not been followed.
Read more: Senator and legal expert join critics of French 2021 inheritance law
It comes into play if the deceased or at least one of their children, was a French or EU citizen or a French or EU resident.
Many readers find themselves in the difficult position of having written wills using rights from a 2012 European regulation, which allows them to choose in a will the law of their nationality to govern their whole estate. This is often used so as to protect the surviving spouse of the couple. French heirship rules oblige for one half of the estate to go to a single child, two-thirds to two and three-quarters to three or more.
The EU regulation also includes a default rule that where a choice of law was not made, the law of the country of a person’s last residency covers their whole estate.
Infringing EU law
Some readers have told how they are looking to sell up and leave France as a result of the 2021 French law; one woman is also facing a claim from a step-daughter in the UK she has never met. Many have complained to the European Commission, whose decision is awaited as to whether France has infringed EU law.
Now, Paris avocate Nathalie Deleuze has told The Connexion about a case she is pursuing for an American woman, faced with a claim from her French step-son in France, over the French-situated part of her late husband’s estate, in a case where US law was set to govern the estate.
Read more: Widow in France facing financial struggle as step-child she never met stakes inheritance claim
The Connexion spoke to Ms Deleuze, along with campaigner against the law Ronnie Bennett, in an online meeting organised by law professor Louis Perreau-Saussine, who stated: “I’ve had discussions with a number of avocats dealing with such cases, and I think there must be at least 10 under way already.”
He has taken a particular interest in the effects of the 2021 law on citizens of the ‘Anglo-Saxon’ nationalities, whose legal systems allow great testamentary freedom.
Prof Perreau-Saussine noted that in the case of French residents, the ‘levy’ is meant to be calculated on the worldwide estate of the deceased, though it can only be taken from French-situated estate, which is adding to problems for French notaires faced with applying the 2021 rules, as it is hard for them to accurately assess a person’s worldwide holdings.
He said the notaire settling the estate must notify the children and there can be some ensuing ‘negotiation’ between the parties. However, if the other party (eg. a step-child) insists on a ‘levy’, usually the notaire should provide for this as part of the settling of the estate.
Read more: Navigating inheritance tax as a Briton in France
Ms Deleuze and Prof Perreau-Saussine suggest, however, that in view of the widespread view among lawyers that the 2021 law is illegitimate because it clashes with EU law, those concerned refuse the ‘levy’, backed up with support from an avocat.
“We can tell the notaire that if they were to spontaneously make the levy, they would face consequences if the 2021 law is subsequently found to be illegal. That should block it, which is better than trying to get the money back later, which would be complicated,” Ms Deleuze said.
If the other party then insists on the ‘levy’, the matter will then have to be settled before the courts – which is the case for the client for whom Ms Deleuze is working.
“In my case we asked if the court could order that the matter be put on hold pending the decision of the European Commission,” she said. “But they refused. They do not want to wait.”
Passing the case to the ECJ
The problem is likely the uncertainty as to when the ruling – now awaited for more than two years – will come.
“Now the judge has asked that the parties in the case present arguments as to whether or not the case should be passed to the European Court of Justice (ECJ) for its view,” said Prof Perreau-Saussine. He said that this has “pros and cons”.
On the one hand, it is likely to cause a further delay, whereas legally, the French judge has the power to decide for him or herself whether EU law has been broken or not. “However, the advantage is that if the ECJ rules that the French levy is against EU law, it will disappear [be clearly ruled illegitimate],” he said.
Read more: How to stay living in your own home in France when you are dependent
If this does not happen, then potentially several cases will have to be argued individually in front of the French courts before this may push the government to take action to reverse the law.
We also asked Prof Perreau-Saussine if he concurs with a view given to The Connexion by an experienced notaire, that in cases where a widow/er chooses to exercise their French-law right to stay in the marital home for life, if they wish, they may still be forced to pay the ‘compensatory levy’ immediately, even if the home is their main asset.
He stated that in his view there is legal doubt, which if necessary would also be settled by a court. “The question is to ask which takes precedence, the protection of the survivor or the right to a ‘levy’. I would instinctively say the policy of protection would take precedence over the rights of an heir who may, in any case, not be in need.”
Regarding the European Commission’s pending decision, he said it is “improbable” that it will rule the 2021 law to be in conformity with EU law. It may, otherwise, oblige the French legislators to remove the ‘levy’ rule, or may say that it is against EU law, but it is down to individuals to go to court to enforce their rights.
He said other potential legal avenues could include a case in the administrative courts (action de responsabilité du fait des lois) against the French state for passing the 2021 law, or perhaps a case against a notaire who had advised making a foreign-language will which is now uncertain to be followed.
Read more: How do wills in France work and do I need to make one?
Ms Deleuze said she will be discussing with her client as to whether or not to appeal the current decision.
“We should encourage people to take legal action before the courts as the more cases there are the more likely it is that the legislators will reform this law,” she added.
There is no specific process for a ‘group action’ for such cases, however she said if they submit many similar cases at the same time on the same point of law, the courts may group them together, as a matter of practicality.
Mr Bennett, who launched his campaign via our pages last year, said he believes it is now uncertain to rely on the Commission and “we aren’t going to win unless we bring more cases to French courts”. Campaigners are reflecting on the way forward, including the possibility of crowdfunding towards helping with legal costs.
Readers potentially interested in taking action can contact us at news@connexionfrance.com. We will pass details on to the campaign leaders Ronnie Bennett and Trish Miller and/or Ms Deleuze.
When a child has been adopted
A reader is worried that her husband’s biological child, adopted by another man in 1969, may have a claim under the 2021 inheritance law rules.
“My husband is upset that we may have to return to the UK to live to get around this law,” she said.
Read more: Can heirs inherit debt in France?
His son was adopted when a baby by his ex-wife’s new spouse, to which her husband consented.
The couple, both British and living in France, have no contact with this son and his name was legally changed to that of his adoptive father.
The couple’s notaire, however, told her he “does not know” if they are impacted by the 2021 inheritance law and “hopes it will go away”.
Notaire François Trémosa from Toulouse said it is highly unlikely the son could claim a share of his father’s estate (he could not claim part of his step-mother’s as there is no French legal relationship between stepchildren and step-parents).
Mr Trémosa said he understood that under English law a child adopted by someone else loses the right to inherit from the biological parent [in the case of intestacy, for example].
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Mr Trémosa stated the same would apply in France where a child is adopted fully by someone else (adoption plénière). “Therefore, the child will not be able to interfere in the inheritance as all legal links have been cut with him – he is simply not the child anymore,” he said.
