Author Matthew Cameron

Issue September 09

Pub Suf Bus

Matthew Cameron discusses the legal implications of owning property in France.

We are often asked in the French Legal Services team if someone who owns property in France and in England should have one global Will or two separate Wills, one for each country.

In order to answer this question we would first need to acknowledge that in accordance with certain international legislation, provided a Will is completed correctly in England then it will be valid in France, removing the need for separate Wills.

However we would always recommend that you have two Wills for a number of reasons.

First there is the practical point about language. If a testator can prepare an English Will in English then the solicitor dealing with his estate will fully understand its meaning without needing a translation. Similarly the testator's French estate would need to be dealt with on his death by a French lawyer - the notaire. If he writes a French Will in French there is again no risk of misunderstanding nor is there any need for translation.

For this it would of course be a requirement that the testator does actually have a sufficient understanding of the French language, or at least what he is writing, for there to be no risk of challenge overall.

The second reason is one of form. While an English Will is valid in France and vice versa, the form that the Will takes is different between the two jurisdictions. To be valid an English Will must be signed before two independent witnesses, who must both also sign the document to attest to the fact that they have both seen the testator sign it and that they were both in each other's presence at the time they themselves added their signatures. It does not matter if the main content of the Will is written in manuscript or printed.

The most common form of French Will must be handwritten by the testator, who must sign and date it himself, with no other formality. It is not witnessed. If this form of Will is produced to an English solicitor dealing with the English element of an international estate, it is likely to cause concern. The solicitor would need sufficient reassurance from an experienced French law practitioner that the Will is valid for use in France and therefore for use in the UK.

It is also common practice that a French notaire will seek confirmation that an English Will is valid. Either way such certification is likely to add a fair amount of cost to completion of the succession.

It can be even more complex when trying to use an English Will in France, since English Wills will invariably contain various trusts, which France does not recognise. It often falls upon the English practitioner to clarify to the French lawyer not only that the Will is valid, but also how it works and who the beneficiaries are.

It is advisable to prepare two separate Wills, one for each part of the estate (UK and France) as a number of further points need to be considered, such as which of the two Wills would govern your personal property. English and French law agree that houses and land will pass in accordance with the law of the country where they are situated, the personal property (which is everything else apart from land and houses) will pass in accordance with the laws of the country of your final residence. The situation may change in both instances if your final residence is outside the UK or France.

Whenever a new Will is prepared a previous Will is automatically revoked, unless specific confirmation is made to the contrary. Extra care needs to be taken when preparing two Wills to ensure that one does not revoke the other, given that one must be written after the other. The same care must be exercised in the future when it is time to review either Will.

Email: france@ashtonkcj.co.uk

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