French succession law creates uncertainty for charities

New French law, potentially overruling gifts to charities, continues to confuse French succession experts.

Anglo-Welsh nationals who own assets in France should be able to make a choice of law for the laws of England & Wales to apply to the devolution of their assets. Because Anglo-Welsh law provides for testamentary freedom, this means that a testator can override French ‘forced heirship’, which is a set of rules that ‘forces’ assets to pass to (mainly) children, regardless of what it says in the will.

Put simply, by choosing Anglo-Welsh law, testators can leave more of their estates to charity.

However, Article 913 of the French Civil Code, introduced on the 1st November 2021 and applying to deaths after this date, ostensibly provides a mechanism for children to apply to have these gifts to charities set aside in their favour.

Article 913 specifically allows an EU resident or EU national children of a deceased person owning French assets, to enforce the rights they would have had under French ‘forced heirship’.

By creating a mechanism to override a testator’s choice of law, Article 913 appears to contravene both the terms and the spirit of the EU Succession Regulation.

For this reason, many practitioners believe it will be necessary to wait until the new law is challenged in the European Courts, before the position is clarified. 

However, fresh commentary and discussion amongst French legal professionals has cast doubt on the extent to which Article 913 will prevent Anglo-Welsh testamentary freedom from applying.  

Some practitioners have commented that Article 913 should only take effect where children do not have the option to claim against their parents’ estates, because the law their parents have elected to apply to their estate does not provide the same level of protection as under French law.

Accordingly, it has been suggested that, because in England & Wales, the rights of children are protected by the Inheritance (Provision for Family and Dependents) Act 1975, commonly known as ‘the 1975 Act’, that, the new French succession law does not apply to Anglo-Welsh law. 

Put another way, the suggestion is that the rights of children, who are EU nationals or EU residents, whose parents have chosen the laws of England & Wales to apply to their estate, are deemed to be adequately protected by the 1975 Act. 

However, some French academics have already cast doubt on this equivalence and say the interpretation of the ‘mécanisme réservataire protecteur des enfants’ (the mechanism for protecting the reserved share) will only become clear over time.

Currently therefore the point is uncertain and this is likely to remain the case until the French and European courts have heard cases.

In the meantime, the international experts within the Stone King charity legacy team are well placed to advise donors on what mechanisms are available, to ensure their French assets pass to the charities of their choice.

If you have any queries in relation to the above or would like further information, please contact Graeme Beattie at GraemeBeattie@stoneking.co.uk.