Before the introduction of Regulation (EU) No 650/2012 (the Succession Regulation, commonly referred to as Brussels IV), it was generally considered good practice for clients with assets in multiple jurisdictions to have a separate will in each country. In a Franco-British context, this approach often facilitated and accelerated estate administration.
Since the entry into force of Brussels IV, however, this is no longer always the most appropriate solution.
The pre-Brussels IV position
Prior to Brussels IV, conflicts of law in Franco-British probate matters were relatively limited. As a general rule:
Lex situs applied to immovable property, meaning French inheritance law governed French real estate; and
Lex domicilii (law of deceased' domicile) applied to movable assets.
Accordingly, for a UK-domiciled individual owning French property, it made sense to execute a separate French will. The French property would in any event be subject to French inheritance law, and the use of a local will, readily understood by a notaire, was often seen as a practical way of facilitating the administration of the estate in France.
The impact of Brussels IV
Brussels IV fundamentally changed the connecting factor for succession by introducing habitual residence as the default applicable law governing the succession as a whole.
In practice, however, the position in a Franco-British context is more nuanced. While France applies Brussels IV, England & Wales does not. English private international law continues to apply lex situs to immovable property and lex domicilii to movables. As a result, where English law is designated as the applicable law under Brussels IV, English internal law may “throw the ball back” to French law for French immovables, a renvoi which France will accept.
Crucially, Brussels IV also allows a testator to elect the law of their nationality to govern their entire estate. A British national with strong connections to England & Wales may therefore validly choose English law to apply to their worldwide estate, including French property.
The reflex to recommend a separate French will
Despite this framework, I am frequently contacted, either directly by clients or via their solicitors, with enquiries about drafting a separate French will. While this may be appropriate depending on the client’s personal and family circumstances, it is not universally good advice.
Recently, I lost a potential instruction following an exchange with a private client solicitor who had contacted me to say that they had advised their client to execute an English will containing an express choice of English law and were now seeking a quote for a separate French will containing the same choice of law.
When I queried the practical purpose of this approach, several concerns arose:
A French will electing English law does not, of itself, dispense with the need for notaires to obtain an opinion on English succession law, and in practice notaires may often require a grant of probate from England and Wales where an express choice of English law has been made.
The rationale for the choice of law was not clearly articulated.
The solicitor responded that they had already advised the client that a separate French will was in their client's best interests. However, without a clear understanding of the client’s circumstances and objectives, it was difficult to see the added value, or indeed the practicality of that advice.
If a practitioner advises a client to make an express choice of English law, this presupposes that they have already considered and explained the consequences for French assets. In that context, it is worth remembering that such a choice of law is not relevant from a UK perspective, as the UK does not apply Brussels IV, and may not be determinative for the French estate.
The overlooked flexibility of an English will
Practitioners sometimes overlook the fact that a well-drafted English will can be recognised and implemented in France. English wills can include bespoke clauses tailored to overseas assets and can, in appropriate cases, provide a more coherent and efficient solution than multiple jurisdiction-specific wills.
A more nuanced approach
In my practice, when advising on UK-French cross-border estates, I prefer to look at the estate as a whole and to present clients with the available options:
a single English will covering both UK and French assets; or
separate wills for each jurisdiction.
There is no single “correct” solution. Each option has advantages and disadvantages, and the appropriate structure will depend on the client’s residence, nationality, family situation, asset profile, and objectives.
That said, where I advise a client to make an election of English law (for example, to avoid French forced heirship rules), I generally recommend a single will governing both UK and French assets. From a practical standpoint, this often reduces complexity and avoids the risk of a poorly coordinated French will drafted by a notaire unfamiliar with English succession law.
What constitutes good practice?
Where clients hold assets in multiple jurisdictions, good practice is to involve a private client lawyer specialising in cross-border succession. Such a practitioner can advise on the appropriate will structure and, where necessary, draft the wills themselves or with the assistance of a local lawyer.
If a client’s usual solicitor does not specialise in cross-border matters, it is prudent to seek input from a cross-border private client lawyer to review an English will dealing with foreign assets, or to advise on the need for a separate foreign will.
Where separate wills are chosen, they should be drafted concurrently, with the respective drafters liaising closely to avoid conflicts, revocation issues, or unintended consequences.
At B&M Law LLP, we advise on cross-border estate matters involving the UK, France, Spain, and Italy.
For advice on wills covering both UK and French assets, please contact Loïc Raboteau at B&M Law LLP (loicr@bandmlaw.co.uk).
Comments