Mar 22

Inheritance law, enforcement of EU REGULATION 650/2017 in France

EU Regulation 650/2012 on «jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession» was adopted by EU on 04 July 2012 it came into force on 17 July 2015.

This Regulation simplifies rules of succession in an international context, unfortunately UK, Ireland and Denmark have opted out of it which might complicate enforcement.

On the other hand, France has not opted out, the Regulation is now enforceable on French territory. For states that have implemented the Regulation, the default position is that the law of the country in which the deceased was ‘habitually resident’ at time of death will apply to his estate.

This law applies unless the deceased was “manifestly more closely connected” with another state, in which case the law of this latter state would apply instead. Precisely what “manifestly more closely connected” means is not entirely clear, but it is anticipated that this latter test will only be applied in exceptional circumstances.

The law applied under these initial tests can be overridden by an express election (usually in a Will) for the law of the individual’s nationality to apply.

Electing for the law of their nationality to apply SHOULD allow individuals to circumvent the forced heirship provisions prevalent in European civil-law jurisdictions such as France.

I must however warn owners that article 35 Regulation (EU) No 650/2012 provides:

“Article 35 Public policy (ordre public)
The application of a provision of the law of any State specified by this Regulation may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum.”

On the basis of this article, a potentially flouted heir could try to challenge application of foreign law in France by arguing that it contradicts to strongly with French rules. I ignore how such a contestation would be received by French Judges.

Indeed, because it has so recently entered into force, I have found no case precedent on interpretation of this EU Regulation.

Vu the complexity of situation, I do not recommend “home-made” will or just relying on this general advice since each situation is different and owners should seek the guidance of a legal professional.

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