Peter attended the Conference organised by the French notariat and the BIICL in Bordeaux on 26th September, 2013.

The main point of concern was the relatively few English lawyers present to take advantage of the opportunity to meet and to discuss the actual outworkings of the procedures whose implementation the incoming EU Regulation on Cross Border successions will require. That is all the more surprising given the apparent appetite that the Law Society has indicated in enabling its membership to draft English law wills for British nationals seeking to move their habitual residence if not domicile to France, on the basis of the law of their nationality.  There was significantly at least one Scottish lawyer present.

It will perhaps now be better for the BIICL to see whether it can join forces with other organisations such as STEP to encourage discussion and thought with the Notaries in France about how the necessary bridges can be built between the régime set down in the Regulation. The Regulation applies as of right to all of the issues defined in it, including the manner of its administration and settlement of debts prior to any distribution of assets.

The way in which the French notary is going to have to approach the question of the unlimited liability of the executor of a will and the underlying estate for its debts, prior to considering any distribution will be foreign to him, and he will certainly not accept unlimited personal liability for the debts of an estate. That goes beyond the scope of his professional charge and capacity. The only equivalent, an administrateur is a commercial court appointment equivalent to a company or business liquidator, not a civil one and will simply not fit.

What was also interesting was the very clear explanation from French professors of law as to their position on the debate as to whether the réserve héréditaire is a question of ordre public, and the distinction between ordre public national, and ordre public international. Mastering that differential before advising a client that they can avoid the French réserve on immovable property by using an English law will is a necessity, as is a mastery of the succession duty issues outside the blood line (maximum rates are 60%).

Significantly, the Regulation appeared at least initially, to allocate the United Kingdom the status of a third state, albeit a member state of the European Union, as a result of its opting out;  along with Ireland and Denmark. A query was made whether this is actually the case, and whether some clarification of the these EU Member States' position was necessary either as EU member state not covered by the Regulation, with all the increased obligations that that would carry, or as third states within the areas covered by the Regulation.

Given the inclusion of the Bailiwicks of Guernsey and Jersey, and the Isle of Man within the scope of the Union, these Bailiwicks are also affected indirectly by the position of the United Kingdom within the European area of private international law.

Watch this space, as the 2015 deadline approaches!