Is My English Will Valid in France?

British nationals living in France, or British residents with a property in France, will want to know whether their Will, prepared either in England or in an English style, will be valid in France.

In this article we explore a number of different factors to consider.

The first question to ask is whether your Will is valid, in that it complies with signing structure as set out under English and Welsh law, the Wills Act 1837. Section 9 of this law sets out how your Will should be executed in order to be formally valid.

The person making the Will (the testator) must generally be at least 18 years old and must sign the Will in the presence of at least two witnesses, who are present at the same time. The witnesses must then sign the Will in the presence of the testator.

It isn’t set out by law, but it is generally accepted that the best place to sign the Will is at the end. It is also highly advisable to include the date that the Will was signed.

It is also advisable to include an attestation clause, which confirms that the relevant requirements have been followed.

Once signed, the Will is in force. It will remain so until it is revoked, either on purpose because the testator has actively done so (for example by making a new Will and confirming in this new Will that they revoke the old Will), or by an act such as marrying or entering into a civil partnership.

In addition to the above points, in order for their Will to be valid the testator must:

• Have the mental capacity required to make a Will. Broadly speaking this means that they must understand that they are making a Will, understand the extent of their assets, and understand any claims that may be made on their Will (eg they should know who might expect to inherit under their Will).
• Have had knowledge and approval of their Will. The testator must know the contents of their Will and approve it.
• Not have been subject to undue influence when making their Will. This means that they must not have been coerced into making their Will.

Essential Validity is a little different to the validity points discussed above. Even if a Will conforms with the points above, if its contents are contrary to the inheritance laws in the jurisdiction in which the Will is to be used, it will be ‘essentially invalid’.

For example, in France (broadly speaking), if you are unmarried with two children, the French law of forced heirship dictates that on your death you must leave each of your children at least a third of your assets. If, instead, (assuming that you are living in France) you make a formally valid French Will in which you leave all your assets to only one of your children, it will be essentially invalid, because it goes against the laws in France and so the terms of the Will cannot be followed in full.

Assuming that you have made an English-style Will that is valid in accordance with English laws, will it be valid in France?

France has signed up to the EU Succession Regulation (650/2012). Article 27 states that a Will shall be considered valid if it complies with the law of the country in which the Will was made, or if it complies with the law of the nationality of the testator.

So, if you are a UK national and you make your Will in accordance with English or Welsh law (assuming that you are connected to England and Wales), it will be accepted as formally valid in France, even though it may not conform with the formal French validity rules.

Even though your English Will is recognised as formally valid in France, it may not be possible to carry out all the terms of the Will in France.

In 2015 the EU Succession Regulation 650/2012 came into force. This allowed an English testator to elect for English succession law to apply to their French assets on their death.

In England we can, broadly speaking, leave our assets to whomever we wish on death. By including an election of English law in a Will, when the Will was used in France the terms had to be followed.

However, in 2021 a new law was introduced in France, which is contrary to the EU Succession Regulation. It means that in certain circumstances, the election of English law can be overruled by the notaire dealing with your succession in France, if your children do not agree with the terms of your Will.

For example, you are resident in France. You have made an English Will, electing for English law to apply and leave your French home to your spouse (which is acceptable under English law). You have a child who is 20 years old. Following your death, your notaire will note that you have a valid Will, but that the terms of it don’t follow the French forced heirship rules. The notaire will therefore ask your child if they are happy for the terms of your Will to be followed, or if they would prefer to receive the share that they would have, if the French rules had been followed.

By contrast, if neither you nor your children are EU resident or nationals, and your English Will contains an English law election then the terms of your Will must be followed in France, even if the terms are contrary to the French forced heirship rules.

If you wish to have an English Will to cover your assets in France, it is recommended that you have the Will prepared by specialist cross-border solicitors who can not only check that the formal validity is correct, but also that the terms of your Will can be carried out in full in France, and that they don’t have any unintended inheritance taxation consequences for your family.