There are four kinds of French will – au­then­tique, mys­tique, in­ter­na­tional and olo­graphe

No­taire Benoît Duchan ex­plains the dif­fer­ent types of will in France and what to con­sider when mak­ing one

French Property News - - News -

To make a will that will be con­sid­ered valid un­der French law, you must be men­tally ca­pa­ble and at least 18 years old, al­though there are pro­vi­sions in place for mi­nors to make a will from the age of 16. The will only ap­plies to as­sets which the tes­ta­tor le­gally owns at the time of death.

Which will? France has signed the 1961 Hague Con­ven­tion con­cern­ing wills and there­fore recog­nises wills that are valid un­der UK law. This also means that a UK will can cover French as­sets and that a French will can also af­fect as­sets lo­cated in the UK, but also that a French will can can­cel a UK will and vice versa.

It is there­fore very im­por­tant to men­tion to your lawyer or no­taire who helps you with your French or UK will if you al­ready have an­other will in place in the other coun­try. Oth­er­wise, if you start your new will with the stan­dard “This is my last will and tes­ta­ment; I can­cel every other pre­vi­ous will...”, this au­to­mat­i­cally can­cels the will you have al­ready drawn up in the other coun­try.

If you want to main­tain the other coun­try’s will, it has to be specif­i­cally men­tioned. For in­stance, you could say: “I can­cel every pre­vi­ous will ex­cept the will made on such-and-such a date in France (or in the UK) that I specif­i­cally main­tain.”

Two sep­a­rate wills? Even if a sin­gle will can cover as­sets in both coun­tries, it may be rec­om­mended in some sit­u­a­tions to have two sep­a­rate wills, one for each coun­try, be­cause the in­her­i­tance and tax laws in the two coun­tries may be dif­fer­ent. French law, for in­stance, does not recog­nise the ‘trust’ sys­tem or the pow­ers that a UK ‘ex­ecu­tor’ of a will has un­der UK law. This may cause prob­lems, es­pe­cially for reg­is­ter­ing the trans­fer of the French prop­erty. In terms of taxes, a dis­cre­tionary trust is heav­ily taxed in France, even if the ben­e­fi­cia­ries are the chil­dren.

The Euro­pean Suc­ces­sion Reg­u­la­tion 650/2012, which came into force on 17 Au­gust 2015, al­lows you to elect your na­tional law of suc­ces­sion to ap­ply to all your as­sets in­clud­ing those lo­cated in France. If you wish to elect your na­tional law of suc­ces­sion, and for it to be recog­nised in France, it must be writ­ten into your will. How­ever, the UK has opted out from this EU reg­u­la­tion and there­fore its ap­pli­ca­tion is not yet guar­an­teed. Please note that this reg­u­la­tion is not a tax treaty and so the French tax reg­u­la­tions would still ap­ply.

Types of will Un­der French law a will can be ‘ au­then­tique’, ‘ mys­tique’, ‘ in­ter­na­tional’ or ‘ olo­graphe’.

An au­then­tique will is dic­tated in French by the tes­ta­tor to a French no­taire, who writes it up, and is signed in the pres­ence of two wit­nesses or an­other no­taire.

A mys­tique will is handed to a French no­taire in a sealed en­ve­lope in the pres­ence of two wit­nesses. An in­ter­na­tional will can be hand­writ­ten by the tes­ta­tor him­self or typed, not nec­es­sar­ily in French, and signed in the pres­ence of two wit­nesses in front of a French no­taire.

An olo­graphe will – the most com­mon type in France – is writ­ten en­tirely by hand, dated and signed by the tes­ta­tor him­self. It is not signed in the pres­ence of a no­taire or wit­nesses. French law con­sid­ers that the fact that it is en­tirely writ­ten by hand by the tes­ta­tor is suf­fi­cient. It can be writ­ten in any lan­guage, not nec­es­sar­ily in French. It is, of course, rec­om­mended that the tes­ta­tor gets le­gal ad­vice be­fore draw­ing it up. The tes­ta­tor should give the orig­i­nal of the hand­writ­ten will to a French no­taire in or­der for it to be kept and reg­is­tered at the ‘ fichier cen­tral des dis­po­si­tions de dernières volon­tés’, the French na­tional reg­istry of last wills and tes­ta­ments. This for­mal­ity is not a con­di­tion of va­lid­ity of the will but is to guar­an­tee that it will be found and used.

In con­clu­sion, I highly rec­om­mend that you seek le­gal ad­vice from a specialist be­fore you make your will con­cern­ing any French as­sets. This can be a very cost-ef­fec­tive way to avoid any un­due dis­tress and con­fu­sion for your ben­e­fi­cia­ries.

It may be rec­om­mended in some sit­u­a­tions to have two sep­a­rate wills, one for each coun­try

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