Is My English Will Valid in France?

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Expert FAQs

Is My English Will Valid in France?

Charlotte Macdonald is a Senior Associate Solicitor (consultant) in Stone King’s international and cross-border team.

Charlotte answers legal and practical questions that are often asked by her clients in relation to France; whether that be buying or selling property in France, inheritance law, or how inheritance and capital gains tax are treated between the UK and France.

Here, she looks at whether an English Will is valid for British residents or British nationals living in France with a property in France.

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.

Formal Validity

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.

Substantive Validity

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

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.

Recognition of English Wills in France

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.

Can the terms of my English Will be carried out in France?

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.

For more information please contact the international and cross-border team at Stone King LLP –Charlotte Macdonald, Dan Harris, Raquel Ugalde, Emma Seaton, Bryony Anning and Marina Emmanouel either by calling +44(0)1225 337599 or by emailing [email protected].

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Comments

  •  Christine kennedy
    2024-05-07 06:45:18
    Christine kennedy
    We own a small property in northern France and our eldest son has lived in it for 21years. When we die can our wishes be dealt with under English law and if so can we make a will in England that will cover this. We have an English will for our house in England which states our property in the uk will be split between our two sons so i hope this is separate and obviously will be dealt with in the uk. Our younger son is married to a French wife and they have one son. Our eldest son who lives in the property in France is single so we would like him to be able to carry on living there after our deaths until he dies and then pass the property in France to go to our second son.

    REPLY

    •  Charlotte Macdonald
      2024-05-13 12:50:11
      Charlotte Macdonald
      Hello Christine. You can certainly make a Will covering your property in France, in which you elect English law. The problem with this is that at the moment, in some circumstances, your wishes may not be followed - please see an article that I have written on this subject - https://www.stoneking.co.uk/literature/e-bulletins/important-change-french-succession-law There may however be other things that you could consider doing. For more information and so that we can provide you with detailed personalised advice, please email the team on [email protected]

      REPLY

  •  Charlotte Macdonald
    2024-02-20 06:24:10
    Charlotte Macdonald
    Hello Margaret Whilst I can't comment on your personal circumstances, it may help to know that even though you can make an election of English succession law in your Will, you cannot choose which tax law will apply on your death. Whether UK or French tax will be charged will be determined by the UK/French double taxation treaty on inheritance taxes (1963). Generally if you are living in France, as opposed to the UK, it will be the French revenue who can tax your worldwide assets on your death. This means that if a person is leaving assets to their step-children they will be subject to the high rates payable by a stepchild.

    REPLY

  •  Margaret Ann Matthews
    2024-02-14 01:24:51
    Margaret Ann Matthews
    I am a British Citizen and have been a permanent resident of France since 1993. I own property here and pay French taxes but have never worked in France. I am a widow. If I made a Will under English law, which I believe is possible, and leave my estate to my stepchildren (which I intend to do) would this inheritance be taxed in France - as you know stepchildren are taxed very heavily here.

    REPLY

  •  Allen SUGG
    2024-01-27 07:05:38
    Allen SUGG
    My wife and I own our home in England and a holiday home in France. Both we and all our children are British Nationals, resident in the UK (England). We would like a will that provides for our assets to be addressed under English law. Are you able to confirm you would be able to provide such a will and let us have an idea of likely cost, please?

    REPLY

  •  Charlotte Macdonald
    2023-06-14 10:11:44
    Charlotte Macdonald
    If British law (English and Welsh law) is chosen by the deceased to govern their Will, then English and Welsh law should be followed. As discussed in this article this is due to the EU Succession Regulation (650/2012). Under English and Welsh law, before a grant of probate is acquired a child (unless they are named as one of the executors) has no right to see the Will. By contrast in France the héritiers reservataires (children) may see a copy of their parent's Will. Things become complicated when Article 913 becomes involved as it is contrary to the EU Succession Regulation - it is hoped that with time Article 913 may ultimately be set aside or revised to make its contents clearer. We know that some notaires are finding the implementation of it unworkable in its current form. Given its current form we understand that notaires would likely need to seek guidance from their Cridon (their professional notarial organisation) before showing a Will with an English law declaration to children not included in the Will.

    REPLY

  • Alan Wood
    2023-06-08 05:11:42
    Alan Wood
    If the notaire contacts the child/children and asks if they agree to the terms of the will being followed, does this mean that the contents of the will are disclosed to the said child/children?

    REPLY

  •  Peter Harris, Barrister at Overseas Chambers
    2023-04-14 01:19:51
    Peter Harris, Barrister at Overseas Chambers
    One further concern here is that if the disgruntled child "qualifies" as described above to benefit from the French "prestation compensatoire" in France they may consider that they have been excluded from their inheritance in the UK by for example a will trust leaving the life interest over entire fund to a second wife. In those circumstances, the child can put together a claim for compensation from French assets proportionate to the share of the English estate that they would have received in the English estate but calculated under French forced heirship principles. Article 903 Code Civil has a long theoretical reach.

    REPLY