Much delay and expense will be avoided if all the
documents/information necessary to wind up your French
estate cannot easily be located when you die. For
example legal genealogists may be necessary to trace
all your reserved or other heirs throughout the world.
Some can turn even the most unpromising leads into a
successful outcome. For example one genealogist was
recently asked if there was any hope of locating a
person of illegitimate birth called John Smith. No date
of birth or former address could be provided.
Notwithstanding this through the systematic use of
public records the genealogists were able to locate his
whereabouts within 2 weeks.
Various documents must be formally translated from
English into French by a person approved by the French
authorities, many of whom insist on an official
translator (traducteur juré) based in
France.Their fees can be very high and translations are
not always 100% accurate. To avoid some of these costs
the French authorities may accept translations made by
an English Notary Public or some other lawyer in
England supported by an affidavit or certified as to
accuracy and faithful translation. Whoever translates
cannot rely on a photocopy or faxed copy of the
document to be translated unless that document is
itself authenticated or certified to be a true copy of
the original.
Some French authorities insist that some or all
documents are also ‘notarised’ by a Notary
Public in England who vouches for the authenticity of
the document as a whole. Sometimes the notarised
document must also be ‘legalised’ meaning
that it must be sent to the Foreign and Commonwealth
Office (Legal Section) in London who affix the Hague
Apostille
Some French authorities also insist that certain
English documents are accompanied by a French language
certificat de coutume (affidavit or legal opinion of
English law) which explains the rules applicable to an
English document which is to be used in France. For
example if an English will is relied on a notaire may
require a certificat de coutume prepared by a person
knowledgable in French and English law to confirm that
the document is lawful in England. If the deceased
leaves no French immeubles but only French meubles the
certificat de coutume must persuade the notaire that
the English executors have powers under English law to
call in, sell and distribute these assets. The
repatriation of a French-registered car to England is
frequently dealt with by a certificat de coutume which
provides for devolution under English law . It is
always best to submit a certificat de coutume to a
notaire in draft form before it is finally executed.
Its acceptance depends in no small measure on the
notaire’s knowledge (if any) of English law. A
certificat de coutume does not need to be sworn or in
the form of a Statutory Declaration.
-
If you have made a valid French will the French
authorities will require:
-
If you die domiciled in France a photocopy of
your death certificate (sometimes a copy of
your birth certificate and passport also). A
French death certificate (acte de
décès) never shows the cause of
death. This can cause problems if you wish
your body to be repatriated to England. If you
die domiciled in England a official (sealed
certified) copy of your death certificate
(sometimes a copy of your birth certificate
and passport also) must be produced and
translated into French.
-
Your original French will. Even if a thorough
search of your personal papers does not reveal
a French will the notaire should be instructed
to confirm in writing that neither he nor the
French authorities have any record of you
making a French will.
-
A full photocopy copy of the registered title
deeds to your French immeubles.
-
Photocopies of the passports, birth and
marriage certificates of your reserved or
other heirs translated into French together
with written details of their full current
private postal addresses and occupation
(Article 5 of Décret 71-941 du 26
novembre 1971).
-
If you have not made a valid French will the
French authorities will require:
-
If you die domiciled in France a photocopy of
your death certificate (sometimes a copy of
your birth certificate and passport also). A
French death certificate (acte de
décès) never shows the cause of
death. This can cause problems if you wish
your body to be repatriated to England. If you
die domiciled in England an official (sealed
certified) copy of your death certificate
(sometimes a copy of your birth certificate
and passport also) must be produced and
translated into French.
-
A full photocopy copy of the registered title
deeds to your French immeubles.
-
An official (sealed certified) copy of your
English will.
-
An official (sealed certified) copy of your UK
Grant of Probate or Letters of Administration.
-
Photocopies of the passports, birth and
marriage certificates of your reserved or
other heirs translated into French together
with written details of their full current
private postal addresses and occupation
(Article 5 of Décret 71-941 du 26
novembre 1971).
How English procedures can lead to a serious
conflict
Paragraph 30 (1) (a) of the 1987 English
Non-Contentious Probate Rules (‘NCPR’)
provides that if you die domiciled outside England a UK
Grant of Probate can be issued to your English
Executor. If you have no English Executor, NCPR para 30
(1) (b) provides the administration of your estate can
be entrusted to “the person beneficially entitled
to the estate by the court having jurisdiction at the
place where the deceased died domiciled.” Paras 3
(3)(a)(i) and (ii) state that probate of any will which
is admissible to proof may be granted to the executor
named therein either if the will is in the English
language; or if the will describes the duties of
“a named person in terms sufficient to constitute
him executor according to the tenor of the will “
The most usual course adopted in cases where a person
dies domiciled in France is to proceed under NCPR 30
(1) (a) or (b), the entitlement of the applicant for
the grant being supported by a certificat de coutume.
The facts of the two cases detailed below explain why I
suggested in an article published by the Solicitors
Journal on 28 February 2020 that NCPR paras 30 (3)(a)
(i) and (ii) should be amended or even suppressed. An
important factor to remember is that under C civ arts
1025 and 1026 you may nominate one or more
exécuteurs testamentaires and vest in them on
your death all or part only of your personal estate
which determines at the expiration of one year and a
day from the date of your death. Subject to any such
provision ownership of all your French estate vests
automatically in your reserved or chosen heirs.
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The case of Miss Taken (‘A’), Miss
Fortune (‘B’) and Miss Chief
(‘C’)
-
A died domiciled in France leaving personalty
(but no realty) situated both in France and
England. She was survived by her lawful daughter
B. A had made a will in the English language
which was valid under French law but in form not
valid under English law. The will contained the
words “I designate as executor of my will
Mr X of (a French address)” and left the
whole of her estate to her friend C. As this
booklet has already explained, the gift to C
could only take effect subject to B’s right
to inherit one half of her mother’s French
estate.
Despite the above and in order to deal with
A’s assets in England, her English
Solicitors made an application for a UK Grant of
Probate to be issued to Mr X under NCPR para
30(1) (a) (i). The UK authorities ignored the
fact that the papers leading to the Grant were
lodged considerably more than a year and a day
after Mr A’s death. The affidavit of French
law prepared by a notaire made no mention of the
fact that Mr X had by then lost all entitlement
so to describe himself, or that at no time had he
any property vested in him. It followed therefore
that Mr X’s English executors’ oath
stating that he was “the executor named
therein” was incorrect as regards A’
s French estate.
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The case of Miss Ingit (‘D’)and Miss T
Eyed (‘E’)
-
The situation in this case was not dissimilar to
the above case. Miss D died with a French
domicile having made a French testament holograph
in French and a codicil in English. She made
certain legacies and validly left residue to her
sister (E) as D left no reserved heirs. In her
will she named two persons (‘Mr Y’
and ‘Mrs Z’) as her exécuteurs
testamentaires - who had no powers of
administration - and in any event their right to
act in that office had expired in the previous
year. Nevertheless D’s English Solicitors
applied for a UK Grant in favour of Mr Y and Mrs
Z under NCPR 30 (3) (a) (ii).
What makes this case particularly unfortunate is
that the English Power of Attorney to Mr Y and
Mrs Z was sent in draft form to the firm of
notaires then acting in France who had the
document translated into French. They therefore
had full comprehension of the contents. They had
shortly after D’s death prepared and sent
to England for execution by E a power enabling
persons in France to administer D’s estate
on her behalf. This was a correct procedure, the
exécuteurs testamentaires taking no part
whatsoever in the administration of the estate.
Nevertheless the French notaires allowed Mr Y and
Mrs Z to execute the English power of attorney in
the full knowledge that they had no authority so
to do and that even if they had such authority,
it had by then expired.
One must assume in these cases that applications under
NCPR 30 (3) (a) (i) or (ii) for a UK Grant of Probate
were made for reasons of apparent simplicity. If the UK
Grant had been applied for under NCPR 30 (1) (b) this
situation could not have arisen. In the case of wills
of persons dying domiciled in France NCPR 30 (1) (a) is
in fact inapplicable since there is no procedure in
France equivalent to a Grant of Probate and no court
order is or needs to be made as to who is entitled to
administer a French estate. NCPR 30 (1) (b) adequately
covers almost every case, including the above two
cases, for the certificats de coutume should have
recounted the right of the persons entitled alone to
administer, the appointment of an executor having no
significance and the beneficiary named in the will in
Case 1 not being entitled to administer in the presence
of Miss Fortune whilst in Case 2 no beneficiary but
Miss T Eyed can administer. The Grants would have
issued to Miss Fortune and to Miss T Eyed (or their
respective attornies) so that they would have combined
the administration of the French and English assets in
one hand as practice and common sense require.
There remains the interesting question of the extent to
which any acts done by the executors named in the UK
Grants are void or voidable. Section 27 of the
Administration of Estates Act 1925 deals with payments
or dispositions made in good faith under a
representation, but what is ‘good faith’
when the Executor knows that he is acting contrary to
all the rules of the law of the deceased’s
domicile?
French law gives no right of appropriation such as is
given to English personal representatives and the
partage of a French estate has to be by agreement (in
Case 1 between Miss Fortune and Miss Chief); or by
sharing equally each asset; or finally by recourse to
the French court. No such procedure has taken place. Is
therefore a division of the English assets made by the
person in the UK Grant binding on the beneficiaries?
Has the English Executor the right to sell assets to
pay French IHT which is the personal liability of the
reserved or other heirs and not of the estate?
Such judgements as appear relevant prior to the
enactment of the 1925 statutory protection given to
personal representatives tend to the view that a UK
Grant of Probate as an order of the court provides
virtually complete protection both for the executor and
for those doing business with him. If this is indeed
the case, the Rule under which the UK Grants referred
to in Case 1 and 2 were issued offers itself as an
invitation deliberately to set at naught the effect of
French law which English law itself admits is the sole
law governing the administration of the estate of a
person dying domiciled in France.
Indeed, it is interesting to note that in Cases 1 and 2
a leading French notaire, expert in international
succession cases, refused to deal with either estate
unless the UK Grants were revoked and all put back as
it was at the respective dates of death. This might
well be the view taken by an English Solicitor faced
with the reverse situation when he finds that English
law has deliberately been thwarted by French law. It is
not without interest to note that in Re Duches of
Orleans (1859 1 Sw & Tr 253) it was held that the
English courts will not generally follow the grant of
administration made in a foreign country if to do so
would be in contradiction of English law. Why then
should the English courts enable themselves to make UK
Grants to persons in contradiction of foreign law which
is in sole charge of the administration of the estate
in question?
Surely the solution is either to remove section (3) (a)
of Rule 30 or at least for the UK probate Registry not
to apply it without first considering its effect upon
the administration of the estate as a whole.
