15th September, 2015.
This is a detailed summary of the position at law for
individuals owning property in France and in the remainder of the
EU. The law as to successions in the EU changed fundamentally
with effect from 17th August 2015, and this is designed to explain
why any will involving such items now needs review and
change. It is not legal advice, but an outline and should not
be relied upon as such. To obtain that, you will need
to instruct Peter Harris for a formal advice directly or
through the www.clerksroom.com Direct Access Portal.
The deadline for the EU Succession Regulation 650/2012
introducing the concept that habitual residence at death
determines the law applicable to all successions within the EU was
17th August, 2015. The law in Europe has now changed and the
laws applicable to any succession involving an asset on the
Continent have also now changed. Any estate or succession
whose testamentary dispositions are based upon the old scissionist
mechanism such as that between the United Kingdom and France are
now obsolete as there is precious little in the way of transitional
provisions.
The fact that the United Kingdom, Ireland and Denmark have opted
out of its application does not mean that the residents and
citizens of these states are unaffected. They will be when their
successions contain EU situs assets, or when they wish to have a
different law applied.
I have updated the following for discussion concerning the
article 22 nationality option by British nationals habitually
resident and I stress domiciled in France for UK purposes,
therefore outside the Jurisdiction of the Probate Court and outside
the limited scope of application of the Administration of Estates
Act 1925.
Just to remind the innocent foreign reader coming to this for
the first time:
The English probate jurisdiction is limited to the jurisdiction
of the English and Welsh courts. They have two types of
jurisdiction. The first is by way of the "situs" of assets, land
here, or "realty" can be taken as being an "immovable".
English land, but only since s.1 of Land Transfer Act 1897,
has to pass on death by way of an executor, then termed a
representative. Prior to that the heirs or legatees took
directly without any need for registration through probate.
The second is by way of the domicile of the deceased. If the
deceased was not domiciled within either the English or the Welsh
jurisdiction, the Probate Court has no jurisdiction over
their worldwide assets. Whilst it may have a residual and ancillary
jurisdiction over movables in England and Wales by reason of their
situation, this may depend upon whether a foreign executor or
heir can obtain English probate over these on the basis of their
foreign domiciliation. Habit has induced lethal ignorance of
the basis of a Court's jurisdiction over issues and assets within
its own jurisdiction and issues outside it. As Regulation
650/2012 has made a fundamental change within the laws of other
Member States , it is necessary to go back to the English
fundamentals to assess the indirect effect of the Regulation and
its appropriation of English Law to govern foreign assets.
The point to note here is that foreign land ('immovable')
therefore, if it were a matter of English law, would pass directly
to the legatee or heir under English law without any need for a
renvoi. Under the circumstances defined in EU Succession
Regulation N° 650/2012, land situated within the EU will therefore
be considered to be subject to the laws of England and Wales,
and will be adjudicated upon by a Court of an EU Member State
under English and Welsh rules. In other words, the rules of
pre-1897 direct seisin. There is no need whatsoever for any
consideration of renvoi, with which the Continental notariat - ably
assisted to the point of intellectual dishonesty by @EU_Justice and certain
non-professional internet publications - has become obsessed in the
belief that they can comprehend and therefore rewrite English law
as they please by introducing renvoi where it has no place under
English law: the very law which they are seeking to
understand and apply! It is curious how the so called
academic research into this has left so many holes, which does no
honour to those seeking advancement through this process. The
point is a professional one met by the English Bar as the legal
profession which presents argument to the Courts, and therefore are
best placed to advise on when, over what and how the English Court
asserts its jurisdiction. Other professions do not always have this
experience and training.
Perhaps I should illustrate this topic by a practical reference
to the jurisdiction exercised by a Chancery Master over the assets
of a child of British nationality resident in France under the
Children's legislation when required by a French juge
des enfants to adjudicate under nationality. The
answer is that the Chancery Master has no jurisdiction over this,
and will refuse it, unless you can bring the case within what is
known as the residual Admiralty jurisdiction over assets lost
outside the Court's effective jurisdiction i.e. at sea, out of
range of cannon shot from the mainland. That is the manner in
which a Master's jurisdiction over French situs property and indeed
any foreign situs property of a child abroad has to be argued to
even get over the threshold of the court. Hence the reference
to Nelson.
Note that Scotland and Northern Ireland also fell outside the
scope of that Act, as they do of the remainder of the English and
Welsh property consolidating legislation of 1925. The wording of
Parliament is important, as that both defines and limits
Parliament's intent.
Whilst the Administration of Estates Act 1925 s. 58 (2)
was repealed by the Statutory Revision Act 1950, s. 58 (3)
has not been. The territorial application of the English and
Welsh statute is therefore subject to a limitation which is in fact
that of the Probate Court. What is more, the Act has not granted
any jurisdictional extension over "foreign" immovables except
within the United Kingdom under the Administration of Estates Act
1970 by the resealing of a foreign grant. A resealing of a foreign
grant is not an extension of the Court's jurisdiction abroad!
The current s 58 (3) reads
"Short title, commencement and extent.
(1) This Act may be cited as the Administration of Estates Act,
1925.
(2) (repealed) . . . . . . . . . . . . . . . . . . . . . . . . .
. . . .
(3) This Act extends to England and Wales only."
It is clear that the Act only applies only within England
Wales, not in France. The Court therefore has no direct
jurisdiction over French immovables. Whilst subsection 2 was
repealed, subsection 3 remained. Therefore the remainder of the Act
does not assist or enable an executor of an English will in
acquiring any form of possession or right of administration over
foreign immovables without more. The Regulation 650/2012 is
not applicable and has no direct effect within the United Kingdom,
as to this specific area, so does not add to ss. (3). The
Regulation may have a form of effect upon issues decided by the
English courts on other points in issue, but it does not increase
their statutory or common law territorial jurisdiction.
In the case which I am addressing, the normal law applicable
under Regulation 650/2012 and the competent Court will be that of
the Member State of Habitual Residence: i.e. France.
The question is, if the nationality law option is exercised by a
British national n (English or Welsh) under article 22 of
Regulation 650/2012, what is the actual law of the Nationality
concerned as to the administration of the movable and immovable
assets in France, not I stress in England and Wales (which would
best be dealt with under a second separate English will subject to
English Probate)? It is clear that the English law relating
to foreign land remain unamended by the 1897 Act and subsequent
legislation because put simply it is outside the jurisdiction of
the English Courts as to foreign immovables, and therefore outside
the statutory reach of an English executor or personal
representative. To pretend to extend this by virtue of a
Regulation inapplicable within the United Kingdom is dystopian.
Particularly if it is an artificial question designed to subvert
the limited authority granted by Parliament .....
I stress that this is not a question of renvoi, but rather of
what is the English law applicable to immovables outside the
jurisdiction.
The Regulation in France and within the EU -excepting the United
Kingdom, the Crown Dependencies, Ireland and Denmark- states that
one law shall govern the powers of the heirs, the executors of the
wills and other administrators of the estate. In this
instance, I am looking at English law governing assets on the
Continent, in the case of a deceased dying habitually resident
within England and Wales under article 21, or English law applying
to assets or to a succession in the EU on the basis of an option
for the law of nationality to apply to the whole estate or
succession under article 22.
THE EFFECT OF AN ENGLISH PROBATE OR GRANT OF
ADMINISTRATION.
What is the scope and effect of a grant of probate obtained by
an Executor under the seal of the English Probate Court, or, in
cases of intestate succession, a grant of administration having
been made in favour of the applicant?
An executor derives his powers from the will, an administrator
from the grant made to him by the Probate Court.
By the issue of these grants the English representative then
obtains evidence of his title to deal with the deceased's estates.
As a general rule, neither a grant of probate nor of administration
has any extra-territorial effect. In other words, under English
law, it has no effect in France. An English grant has no direct
operation outside England to vest the immovable property, French
land, in the hands of the executor of the will. The effect of an
English grant of probate or letters of administration upon foreign
assets depends partly upon the nature of the property in question,
that is, whether it consists of immovables, movables, choses in
action, ships or other property of special kinds, and in practice
partly upon the domicile of the deceased at the date of his death.
Although in so far as proceedings in the Courts of this country are
concerned, the domicile is irrelevant. The Regulation 650/2012 is
of no effect and is not applicable in England by virtue of the
Opt-out. There is therefore no European rule of "direct effect"
upon which the executor in France can rely to plead that the
Regulation has changed the laws of England and Wales in this
respect. Others perhaps but not in this instance as to the
applicable law.
With regard to Immovables.
An executor does not, by virtue of English grant of probate
alone, acquire any rights or powers over foreign immoveable
property. The probate court simply does not have jurisdiction
to grant it. What is more neither an English Personal
representative nor executor can in any event be put in any form of
possession of a foreign immovable enabling its administration by
the English Court. That therefore addresses the position as
to the rules of administration in relation to article 23 2. (e) and
(f) of the Regulation which states:
Article 23
The scope of the applicable law
- The law determined pursuant to Article 21 or Article 22 shall
govern the succession as a whole.
- That law shall govern in particular:
...
(e) the transfer to the heirs and, as the case may be, to the
legatees of the assets, rights and obligations forming part of the
estate, including the conditions and effects of the acceptance or
waiver of the succession or of a legacy;
(f) the powers of the heirs, the executors of the wills
and other administrators of the estate, in particular as regards
the sale of property and the payment of creditors, without
prejudice to the powers referred to in Article 29(2) and
(3);
EFFECT OF AN ENGLISH GRANT.
A grant cannot (except in the case of movables belonging to a
deceased domiciled in England) directly extend to property situate
outside the jurisdiction of the Court.
In the same way, a grant of administration gives the
administrator no direct rights over foreign immovables nor is he
put in any form of legal possession of these enabling him to act in
relation to those assets abroad independently. What the executor or
administrator does, however, acquire by such grants is, in most
cases where the English grant is the grant of the domicile, the
right to call upon the Courts of the foreign country to follow the
English grant, and give him ancillary administration, that is, by
order to clothe him with the authority required by the lex fori of
the foreign Court to enable him to acquire and exercise the rights
which the deceased had in his lifetime over the property situated
within the jurisdiction of the Courts of such foreign country.
There is no grant to be given over the foreign immovable estate
of an individual domiciled in France!
No doubt the English executor is regarded by the Courts of this
country as representing the domiciled deceased in respect of the
whole of his property wherever situate, but the title to foreign
land cannot be adjudicated upon by English Courts and the
administration of such foreign lands must depend on the lex situs,
and succession thereto must be regulated by the same law .
It would, therefore, perhaps be more exact to say that the
English grant of probate only gives the executor such rights over
immovables situated out of the United Kingdom as are allowed by the
lex situs.
So, in French cases it is sometimes competent to an English
executor, under a will proved in England, to dispose of immoveable
property abroad without making the English probate executory in
France, and without obtaining any ancillary grant to the deceased's
estate. Compliance must, however, be made with the lex situs in
each case.
Article 792-0 bis CGI then comes into play, unless you can argue
that statutory trusts fall outside the definition which is a parody
of that of the Hague Convention 1984. Note that English statutory
trusts were supposedly excluded from the Hague definition.
So, it transpires from this analysis that there is no probate of
a will of a foreign domiciliary over foreign immovables in England
and Wales, even where the deceased is domiciled within England and
Wales. Even less so then where the deceased is domiciled and
habitually resident in France
There is therefore no objection possible to a will made under
the laws of England and Wales by a French resident incorporating
the French concept of an executeur testamentaire,
in that capacity, being also a legatee to administer the
French immovable succession according to the Will.
That conclusion may also apply whether the deceased died
domiciled in France or in England or whether they resided in France
or in England. Nationality is not a factor.
The law of the nationality of an English or a Welsh national
therefore does not seem to dogmatically require a grant of probate
or executorship/personal representation in the English style over
Foreign Property of any type real or personal movable or immovable.
The territorial limitation on Administration of Estates Act 1925
contained in s 58(3) of the 1925 Act has a limitative effect both
legally and territorially.
If French forced heirship rights are to be excluded by this
process, then is it worth running the risk of seeing the
"appointment" of an English executor being challenged by the heirs
on the basis that the Executor is not vested with any actual legal
control over the French immovable assets, under the very law of the
nationality invoked? The advantage of the freedom to appoint
foreign equivalents of executors should be pressed home, not
surrendered to some illusory European PIL ideal of Renvoi
which is not actually contained within the Regulation. There
is no point in chasing one's own tail.
As the Court of the Habitual Residence of the deceased; France
will be the lead court in the specific circumstances under article
4 of the Regulation, and irrespective of whether the United Kingdom
is a Member State or not, which frankly is a sterile debate on this
point, the jurisdiction of the Court of the law of the nationality
option would be limited in any event under article 7 to certain
specific issues. The Probate Court's jurisdiction over any
newly invented foreign grant would therefore in any event be
excluded saving the circumstances set out in article 7.
Any residual tidying up in England would be done under the
recognition procedures laid down in the EC ACT 1972 as amended.
The aim is to use the actual present mechanics to sort itself
out, rather than to hastily plaster a general and therefore
difficult concept over the existing law and principles, and
certainly without setting what is merely a PIL Regulation on a
pedestal as substantive law, from which it will rapidly suffer the
effects of the practical force of gravity.
Whilst I see no problem with separate wills being drafted for
France and the United Kingdom, in France, for a person habitually
resident and domiciled there, subject to the Regulations rules as
to formal validity, there will be questions as to the appointment
of a legatee as an "executeur testamentaire", adopting the French
concept in a space of legal freedom, and also as to the older
English Rules as to the ordering of creditors in relation to
legacies. Those are not insurmountable, as the English Court simply
does not want an impractical and unenforceable jurisdiction over
these. It seeks at all costs to empower others who are able or
enabled within the foreign jurisdiction. That renders the
appointment of an executeur testamentaire not only facultative, but
in my opinion necessary, otherwise no one in France will have the
uncontroverted power to do anything at all. I stress that the
nomination of an executeur testamentaire over foreign French
immovables is a valid appointment under the laws of England and
Wales. This is not a question of incorporating French law
into the will, as this is a question of how English law addresses
the administration of the foreign immovable succession, therefore
under article 23(2)(f) of the Regulation with no violence to the
option taken by the deceased testator.
The main problem will arise with disgruntled issue from prior
unions where the current French Forced heirship liberties in the
French PIL free zone are argued not to apply in the case of an
individual testator subject to French domestic ordre public.
French experts agree that the domestic Public Policy rules as to
reserves do not apply in a PIL situation, as the reserve rules are
domestic, as opposed to international ordre public. see the
case of Caron, which was decided in favour of the forced heirs not
a a forced heirship point but rather on the basis of a fraus
legis
However, where the deceased dies resident in France, the
succession will not be an international one, from which forced
heirship is excluded. It is a domestic one, and therefore internal
forced heirship rules will apply to it, unless the law of the
nationality is invoked and what is more, an executeur
testamentaire can take possession of the administration of the
immovable in France.
I am not aware of any French expert going so far as to state
that the Regulation overrides domestic, as opposed to international
French public policy. I would argue that the law of
nationality and the Regulation overrides it either as a new source
of PIL or in its own right.
The further issue will be whether the Family Provision domicile
limitation will be treated as disabling or enabling those
provisions' exportation to France. I am not however addressing that
issue here.