Is an Australian will legally binding in France?
John Kitching, a director of French Law Consultancy Limited,
answers a reader query
French inheritance law differs from that of the UK
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Reader Question: I keep receiving letters from my French bank regarding my late husband’s accounts. He died resident in France in 2022 leaving an Australian will. I am not sure whether the recent changes to French inheritance law mean I should wait to deal with his succession, or not.
While your husband left an Australian will, this would be valid for use in France under an international convention. As your husband died a resident and asset holder in France, the next step is to determine what law applies to his estate under the EU Succession Regulation 650/2012, which came into force in 2015.
The default position is the law of his habitual residence will apply, i.e. that of France. But it can be displaced either by virtue of an express election in a will prepared after 2015, or by a deemed election appearing in a will prepared before 2015.
Read more: EU ruling on French inheritance law drags due to volume of complaints
It is possible that Australian law would apply to your husband’s estate via either of these mechanisms. A copy of the will would need to be reviewed to ascertain whether the election was valid and determine what assets it would affect.
If Australian law were to apply, we would suggest you seek assistance from an Australian lawyer, as a declaration of foreign law would be required by the notaire dealing with his French succession.
You refer to a recent change in French succession law which, where foreign law applies in France and does not grant any reserved heirship rights to the deceased’s children, gives them the right to seek financial compensation from the estate.
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Although the European Commission is in discussions with France, the amendment has not yet been overruled. So we cannot advise you to neglect the administration of your husband’s French succession, particularly as interest and penalties may apply where any inheritance tax is not settled within the relevant timeframe.
Read more: Why have French notaires said my husband’s UK will is not valid?
