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The Connexion - Legal Notes - French Nationality & UK Wills

Question

I was delighted last week to receive notification that my wife and I are now both dual nationals, not just British but newly French. We have been living in France for over 30 years. The procedure took 2.5 years from first contact on this topic.

Some time ago, we opted for our wills to be considered under the English system.

Please could your legal expert suggest whether our acquisition of French Nationality automatically means that this option is no longer applicable and hence whether we ought to make new wills? Vive la France! PB

Answer

Congratulations on becoming a French citizen!

The general rule is that, as a French resident and if you and/or your wife die whilst still residing in France, the Notaire will apply French law (the law of your habitual residence) to your succession as a whole.

You can depart from this rule and instead elect the law of your nationality to govern your succession as permitted by the EU Succession Regulation.

As France has ratified the Regulation, this option is available to all British nationals who live or own a property in France – regardless of the forthcoming departure of the UK from the EU.

This is an effective estate planning tool for British nationals who do not necessarily want to be caught by the French succession rule of reserved heirship which cannot be overridden by Will; and instead choose as the law of succession English law which allows full testamentary freedom.

If you have more than one nationality, you may choose the law of any nationality you possess at the time of making the choice, or at the time of death.

As you have retained your British citizenship, it is therefore perfectly acceptable for you to make a choice of English law to govern your succession.

The election of your chosen national law must take the form of an express declaration in your Wills.

A general provision referring to ‘the law of your nationality’ or ‘the law of the State of which you will be a national at the time of your death’ could invalidate your choice of law, as you have since acquired another nationality which creates uncertainty as to whether French or English law should apply.

As such, you must ensure that your Wills are drafted in such a way as to make an express election of law and specify the actual national law you wish to apply to your succession (English law). You say you opted for your wills to be considered under the English system and so this suggests that an express election of English law has already been made by you. You should however check this with whoever prepared the Wills if you are in any doubt. If there is any ambiguity, you ought to make new Wills.

Fabienne Atkin
Associate Solicitor

This article first appeared in The Connexion - Legal Notes - May 2017.

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