APPLICABLE LAW, JURISDICTION AND RECOGNITION OF DECISIONS IN MATTER OF SUCCESSION Caroline DENEUVILLE DAUCHEZ-DENEUVILLE-DALLEE SCP de notaires 37, Quai de la Tournelle PARIS 5 ème Arrondissement
SUCCESSION CIVIL LAW AND COMMON LAW ADMINISTRATION The heirs The personal representative SAISINE (the right to apprehend the asset) DEBTS The heirs : automatically after death (proof they are heirs : deed of Notoriété) The heirs (ultra vires but possibility to accept the succession up to net assets) The personal representative : letters of administration Duty of the personal representative FORCED HEIRSHIP - Yes for children - For surviving spouse if no children - No for children - Elective share for surviving spouse
SUCCESSION APPLICATION OF FOREIGN LAW An example before going into details: - Mr BOONDONGLE residing in MARYLAND has assets in France, movable and immovable, - He was american citizen, he chose law of his nationality to apply to his succession. He appointed an executor and gave him power to sale his assets wherever located in order to give the money to his second wife. - He has children from a previous union who should receive nothing.! With the European Regulation we will apply the american law, the power of the executor will be recognized in France. The executor will be able to sale the property. And we will accept that children (entitled to forced heirship in accordance with french international law) receive nothing, except if they are in need.
I- CONFLICT / CHOICE OF LAW - JURISDICTION - RECOGNITION OF JUDGEMENTS REGULATION (EU) No 650/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 4 July 2012 :! Entered into force since July 5, 2012! Entered in application since August 17, 2015 THE REGULATION (84 ARTICLES) SHOULD ANSWER ANY QUESTION CONCERNING :! Conflict of laws and choice of law (even so the law designated is the law of a third State)! Jurisdiction! And recognition of judgements between only Member States
I- CONFLICT OF LAWS / APPLICABLE LAW / CHOICE OF LAW THE LAW WHICH APPLIES TO THE SUCCESSION (Art 23) WILL APPLY TO: Determination of the beneficiaries, their respective shares, the right of surviving spouse or partner; Capacity to inherit, disinheritance, disqualification by conduct; Transfer to the heirs, legatees; Power of the heirs, executors- administrators; Liability for the debts; Disposable part, reserved share; Claims which persons close to the deceased may have against the estate or the heirs; The sharing-out of the estate.
I- CONFLICT OF LAWS / APPLICABLE LAW / CHOICE OF LAW UNIVERSAL APPLICATION : The law which is designated by the regulation shall be applied whether or not this is the law of a Member State
I- CONFLICT OF LAWS / APPLICABLE LAW / CHOICE OF LAW A- THE LAW APPLICABLE TO THE SUCCESSION WHERE THERE IS NO CHOICE OF LAW The law applicable to the succession as a whole : the law of the State in which the deceased had his habitual residence (art 21.1) By way of exception, where it is clear from all the circumstances of the case that the deceased was manifestly more closely connected with another State, the law of this State will be applicable (art 21.2).
I- CONFLICT OF LAWS / APPLICABLE LAW / CHOICE OF LAW A- THE LAW APPLICABLE TO THE SUCCESSION WHERE THERE IS NO CHOICE OF LAW Renvoi (Art 34) : if the law of last residence is the law of a third State, we will look at its private international law rules (ex: immovable governed by the law of situation) And we will accept the renvoi to the law of a Member State; Or we will accept the renvoi to the law of a third State which would apply its own law.
I- CONFLICT OF LAWS / APPLICABLE LAW / CHOICE OF LAW A- THE LAW APPLICABLE TO THE SUCCESSION WHERE THERE IS NO CHOICE OF LAW EXAMPLES: Mrs BOODONGLE died, last residence in ITALY. She had movable and immovable assets in France.!Italian law to all assets in France (Art.21) Mr CARSON died, last residence in New-York. He had movable and immovable assets in France.! Third State : we look at the rules of conflict of laws of that State! Law of New-York for movable! And french law for immovable in France (renvoi Art.34)
I- CONFLICT OF LAWS / APPLICABLE LAW / CHOICE OF LAW B- THE LAW APPLICABLE TO THE SUCCESSION WHERE THERE IS A CHOICE OF LAW WHICH LAW : Only law of nationality as a principle (Art.22)!AND the choice is valid even this law does not provide choice of law for succession (under french internal law, we do not accept choice of law for succession) WHERE : in a disposition upon death, a will. WHEN : we accept a choice made before Regulation HOW : the application of the 1) Expressely or the choice may be demonstrated by the terms of the disposition
I- CONFLICT OF LAWS / APPLICABLE LAW / CHOICE OF LAW B- THE LAW APPLICABLE TO THE SUCCESSION WHERE THERE IS A CHOICE OF LAW 2) Secific rules : Article 83 : Transitional Provisions for choice made before 17 August 2015 (Respect of choice) : We accept choice of law which is valid in accordance with the private International law which was in force in the State where the deceased was resident or the State whose nationality he possessed at the time the choice was made. Deemed choice : If the disposition was made in accordance with the law the deceased could have chosen (law of nationality ) that law shall be deemed to have been chosen. EFFECTS : A choice of law excludes the renvoi. Then the law which has been chosen applies to movable and immovable in France.
I- CONFLICT OF LAWS / APPLICABLE LAW / CHOICE OF LAW B- THE LAW APPLICABLE TO THE SUCCESSION WHERE THERE IS A CHOICE OF LAW EXAMPLE : Express choice Mr BARROW, an american citizen had his last residence in New- York, He made a will in 2016, with an express choice for the american law, The territorial unit with which he has the closest connection is New- York. He had movable and immovable in New-York and in France.! In accordance with the Regulation (Art 22), we will apply law of New-York to french assets even if the law of New-York accepts the choice of law only for assets located in New-York.
I- CONFLICT OF LAWS / APPLICABLE LAW / CHOICE OF LAW B- THE LAW APPLICABLE TO THE SUCCESSION WHERE THERE IS A CHOICE OF LAW EXAMPLE : DEEMED CHOICE Mrs CRAWLEY, an american citizen, had her habitual residence in the State of Maryland (connection with Maryland). She made a will in 2000. She appointed an executor, gave him power to liquidate assets, the produce of liquidation to be delivered to the trustee of her inter vivos trust. In the trust deed she asked the trustee to divide assets in two equal shares to be given to the two trust needs she settled for her two sons both disabled adults. She owned a flat in Paris.!Deemed choice for american law (Art. 83-4) : A disposition made in accordance with the Law of Nationality!Law of Maryland applies to administration. The executor will sale the Flat in Paris,!An order of «envoi en possession» has been obtained from the Court of Paris to allow the executor to apprehend the assets in France (equivalent of letters of administration Recital 17).
RECAPITULATION APPLICABLE LAW NO CHOICE! law habitual residence : MEMBER STATE! all assets (movable and immovable) THIRD STATE! Private international law of residence; Renvoi for Immovable : law of situs! Movable : law CHOICE! AFTER 08/17/2015 : law of nationality (express or demonstrated by the terms of dispositions)! BEFORE 08/17/2015 : * Law of nationality, * OR law in accordance with the Private International law rules of the state of nationality or residence at the date of the choice nationality * OR deemed choice if the disposition was made in accordance with the law of
II - FORCED HEIRSHIP RESERVE HEREDITAIRE In two famous decisions rendered on the same day, 27 September, 2017, by the Cour de Cassation, the Higuest Court ruled that the réserve héréditaire is not of international pubic order. In both cases the deceased resided in California. By will he had excluded the children from his first union and bequeathed all his property to his second wife and children of the second union. The court said that the foreign law designated by the french rule of conflict of laws which ignores the Réserve is not in itself contrary to the French international public order.
II- FORCED HEIRSHIP RESERVE HEREDITAIRE The court added : the foreign law can be rejected only if its concrete application, leads to a situation incompatible with the principles of French law considered as essential. Finally, the Court clarified that it was not argued that the application of the foreign law would have left adult children of the first union in a situation of economic precariousness or need. CONCLUSION:! The Réserve héréditaire is public order in French internal law;!as a principle : a foreign law which ignores the réserve is not contrary to french international public order,! Exception : by an appreciation in concreto of the situation if the deceased left children who are minor or in need, the foreign law may be considered as contrary to french international public order.
III- TRUST 1) France does not have trust in its civil law and does not apply the Hague Convention on Recognition of trust of 1st July 1985 2) Recital 13 SR : Question relating to the creation, administration and dissolution of trust should be excluded from the scope of this Regulation. This should not be understood as a general exclusion of trusts. Where a trust is created under a will (or under statute in connection with intestate succession) the law applicable to the succession under this Regulation should apply with respect to the devolution of the assets and the determination of the beneficiaries.
III - TRUST 3) Art 31 SR adaptation of rights in rem: Where a person invokes a right in rem to which he is entitled under the law applicable to the succession and the law of a Member State in which the right is invoked does not know the right in rem in question, that right shall, if necessary and to the extent possible, be adapted to the closest equivalent right in rem under the law of that State, taking account the aims and the interests pursued by the specific right in rem and the effects attached to it.! If a person leaves assets in France to be in a trust, by application of this article 31, we will seek the will, the wish of the testator, the aims, and we will find in the French law the closest equivalent right.
III - TRUST EXAMPLES : 1) Mrs BOONDONGLE died, she left a will with a testamentary trust. She has a flat in Paris. Her husband has the right only to use or rent the french property during his life, then her children will have the full ownership.! Adaptation of the clostest equivalent right in France: the survivor will be entitled with «usufruit» and the children will have the «nue-propriété» (bare ownership).
III - TRUST EXAMPLES: 2) Mr CARSON died, he left a will with a testamentary trust. His partner receives the french property with the possibility that property be sold but if not sold at the death of the partner, that property should pass to the children of Mr CARSON.! Adaptation to the closest french rights : legs de residuo (legs résiduel). The partner is the first owner. If the property is not sold by the partner and is still in his estate at the date of his death, the children will become the owners after the death. They will be deemed to receive the asset from their father and not from his partner (for civil and tax purposes).
IV- JURISDICTION - RECOGNITION AND ENFORCEMENT OF DECISIONS ACCEPTANCE AND ENFORCEMENT OF AUTHENTIC INSTRUMENT IN MATTER OF SUCCESSION REGULATION N 650 / 2011 : THE REGULATION DISTINGUISHES (article 3) :! DECISION : any decision given by a court (any decision either proceeding or not).! COURT SETTLEMENT : settlement approved by a court.! AUTHENTIC INSTRUMENT in matter of succession : - Document formally drawn by an authority empowered for that purpose by the state (NOTAIRE) - The authenticity of wich relates to the signature and the content of the instrument ;! EUROPEAN CERTIFICATE OF SUCCESSION (NOTAIRE)
IV- JURISDICTION - RECOGNITION AND ENFORCEMENT OF DECISIONS ACCEPTANCE AND ENFORCEMENT OF AUTHENTIC INSTRUMENT IN MATTER OF SUCCESSION A - JURISDICTION! Art 4 : GENERAL JURISDICTION = Where the deceased has his residence in a Member State, the Courts of the Member State have jurisdiction to rule the successsion as a whole.! Art 10 : SUBSIDUARY JURISDICTION = The residence was not in a Member State The Courts of the Member State where there are assets have jurisdiction to rule on the succession as a whole: If the deceased had the nationality of that Member State or failing that, If he has his previous habitual residence in that Member State (no more than five years have elapsed since that residence changed). In the other cases the courts of the Member State where there are assets have jurisdiction to rule only on those assets.
IV- JURISDICTION - RECOGNITION AND ENFORCEMENT OF DECISIONS ACCEPTANCE AND ENFORCEMENT OF AUTHENTIC INSTRUMENT IN MATTER OF SUCCESSION A - JURISDICTION EXAMPLES: 1) Mrs BOONDONGLE had her last residence in Germany and a flat in PARIS. The german Courts have jurisdiction and can rule the succession as a whole including the flat in PARIS. 2) Mrs CRAWLEY, an americain citizen has always lived in Texas and has a flat in PARIS. The french Courts may have jurisdiction but only on that flat.
IV- JURISDICTION - RECOGNITION AND ENFORCEMENT OF DECISIONS ACCEPTANCE AND ENFORCEMENT OF AUTHENTIC INSTRUMENT IN MATTER OF SUCCESSION B - RECOGNITION OF DECISION BETWEEN MEMBER STATES- ENFORCEABILITY!Art 39 : a decision given in a Member State shall be recognized in an other Member State without any special procedure being required. In case of contestation any interested party may apply for that decision to be recognized with the procedure provided by the Regulation!Art 41 : Under no circumstances may a decision given by a Membre State be revised as to its substance.! Art 43 : A decision given in a Membre State shall be enforcable in another Member State when, on the application of any interested person, this decision has been declared enforceable in accordance with the simple procedure provided by the Regulation.
IV- JURISDICTION - RECOGNITION AND ENFORCEMENT OF DECISIONS ACCEPTANCE AND ENFORCEMENT OF AUTHENTIC INSTRUMENT IN MATTER OF SUCCESSION C- ACCEPTANCE OF AUTHENTIC INSTRUMENT!Art 59 to 61 of Regulation : An authentic instrument established in a Member State shall have the same evidentiary effects in another Member State as it has in the Member State of origin, or the most comparable effects. An interested person may ask the notaire who has established the authentic instrument to fill in the form provided by the Regulation to describe the evidentiary effects
IV- JURISDICTION - RECOGNITION AND ENFORCEMENT OF DECISIONS ACCEPTANCE AND ENFORCEMENT OF AUTHENTIC INSTRUMENT IN MATTER OF SUCCESSION D - RECOGNITION IN FRANCE OF DEED MADE IN A THIRD STATE If it is established that the parties who signed the agreement had full capacity, have understood the agreement, and it is not contrary to international public order, it should be recognized and applied in France. If the agreement concerns the transfer of an immoveable property located in France, it will be reiterated in an authentic instrument established by a notaire to be published at the Land Register
IV- JURISDICTION - RECOGNITION AND ENFORCEMENT OF DECISIONS ACCEPTANCE AND ENFORCEMENT OF AUTHENTIC INSTRUMENT IN MATTER OF SUCCESSION E- RECOGNITION IN FRANCE OF A DECISION RENDERED BY A COURT OF A THIRD STATE In order to obtain the recognition of a decision rendered by a Court in a Third State, it is necessary to follow a legal process that is to ask the French judge to give a decision of recognition (or exequatur) : the French judge must ensure that three conditions are met : The jurisdiction of the foreign judge based on the connection of the dispute with the foreign judge; Compliance with french international public order; And the absence of fraude to the law. The judge can not review the foreign judgment and he will recognize the foreign decision even if the law applied by the foreign judge is not the law designated by the French private International law.