International wills can be misleading
Partner article: What happens when an international will is drawn up without specifying that English not French law should apply?
John Kitching of French Law Consultancy answers a reader's question on an 'international' will
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Reader question: I have lived in France since 2005 and bought a house for my mum here in 2011. She died in 2017 but had made a will with the local notaire.
On his advice, she made an international will and left everything to me. Our only other living relatives are my nephews. The notaire now says that because my mother neglected to specify she wanted English law to apply, French law must apply. Is this right?
If there are two children, French law reserves a third for each child (including a predeceased child). The remaining third is freely disposable. The will under French law would allow for a third share for your deceased sibling, which passes to their children (your nephews). The remaining two-thirds passes to you.
As to the election of English law, the date of the will is important. The EU Succession Regulation came into effect in 2015, and allows an election of the law of the deceased’s nationality for deaths after that date. If the will was drafted prior to this, it was not commonplace to elect the law of nationality.
If the will was dated after August 17, 2015, there would need to be an express election of law. The use of an international will is a bit misleading. They do exist and were intended to make wills more readily recognised internationally, but in fact do not achieve anything a standard testament authentique cannot. They do not necessarily show an intention to elect the law of the testator’s nationality, unless expressly stated.
You could ask the notaire to seek the view of Cridon, the technical advisory body for notaires, for further advice on interpretation of your mother’s intentions when she drafted the will.
If you can show the notaire you paid for the house or gifted funds, you might be able to recover the funds as a debt or a reversion to donor of a gift (droit de retour).
Author: John Kitching, French Law Consultancy. French Law Consultancy provides French legal advice
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