Lost in translation? Spring clean your cross‑channel documents

A Will is a legal document of supreme importance. It is a fundamental document for anyone who values control and certainty in the succession of assets and is essential for anyone engaging in estate planning. If you die without a valid Will in England, your assets will pass in accordance with the English intestacy rules. This can have unintended and undesirable consequences, tax and otherwise.

There are many cultural and legal differences existing between France and England, and the differences in people’s expectations regarding what they can do with their estates. Individuals in England and Wales generally expect to have the autonomy to decide which provisions they wish to make in their will, even though their bequests may seem unusual to outsiders. For a French client living in England but who has French assets or French resident beneficiaries, we will work closely with trusted French lawyers regarding the succession of their assets to help ensure your planning is seamless and consistent between the two jurisdictions.

Under English Private International Law, immovable property (i.e. land) passes in accordance with the law where it is situated. Where a client has real estate located in France, French advice should be sought on putting in place a French Will to take into account the “forced heirship” rules in France and to help the probate process in England. We would work with French lawyers to ensure there is no conflict with any English Will.

A Will should unquestionably be “spring cleaned” after divorce/dissolution or on marriage.

On divorce/dissolution, any provisions that gift anything to a spouse/civil partner will no longer take effect, and if a spouse is appointed as an executor or trustee in a Will, this will fail. It is therefore advisable to create a new Will at the very latest, once a final order in divorce/dissolution has been granted. It is also possible to create an interim Will (after separation but before divorce).

Clients should also bear in mind that if they marry again or form a civil partnership, any Will is automatically revoked unless the Will makes clear that the individual was expected to be married to a particular person and the intention was that the Will would not be revoked by that marriage.

As so many families that we advise live across several countries and particularly in France, we regularly get asked whether LPAs made in the UK and registered with the Office of the Public Guardian can be recognised in France.

The short answer is that they can be recognised under the Hague Convention on the International Protection of Adults, but that the process to do so is likely to be burdensome in terms of administrative time and costs, and might ultimately still fail. In practice, attorneys may encounter issues with French banks and other institutions who will be unfamiliar with the arrangements under a UK LPA and who might be unwilling to recognise it. Differences in language, legal terminology and administrative procedures will also complicate matters.

It is therefore generally advisable to consult a French lawyer and consider options available under French law if you can foresee the need for someone to act on your behalf in France in the future. We advise those clients for whom this is an important consideration to have a contingency plan in place, and we can work jointly with French legal professionals to set this up. The “mandat de protection future” is the French legal mechanism that is closest to a UK LPA.

French couples living in England are often taken aback to learn that the matrimonial regime they chose when they signed their French marriage contract might not be applied by English judges if they divorce in England. In England, we do not operate a system of matrimonial regimes, instead we have a discretionary approach where assets are redistributed equitably upon divorce.

That said, recent case law has confirmed that “those who sign marriage contracts must understand that it is a significant step with very important consequences. These contracts will be enforced in France and will not simply be torn up in this jurisdiction. ” Case law in England has developed such that an English Judge may have regard to the foreign contrat, although unlike the position in France, there will be other considerations as to how the assets are divided. The court’s priority in England will be to ensure an outcome which meets each spouse’s financial needs. If the effect of a marriage contract leaves one party in a precarious financial position, it will not be enforced in the same way it would be in a French divorce.

French clients living in England who have a French contrat de mariage will be well advised, on their move to England, to convert that contrat into an English postnuptial agreement if they are concerned about protection of assets and future divorce proceedings in this country.

The Livret de Famille is an official “booklet” which keeps a record of family status (marriage, children, death, divorce) in France. In contrast, there is no system or obligation in England to take steps to register a marriage, prenuptial agreement or a divorce post those events taking place. Instead of a registration requirement, England operates using individual certificates for a marriage, birth or death.

If an English prenuptial agreement has been signed before a marriage takes place in France, there are formalities to ensure the English prenup is registered in the Livret de Famille. Instead of the usual certificate issued by the French notaire (when a contrat de mariage is signed), you will have to submit to the civil registrar a certificate signed by the English lawyers who prepared the prenuptial agreement.

If your divorce was pronounced in England after 1 January 2021 (post Brexit), it must be verified in France by the Public Prosecutor of the Republic. The competent prosecutor will depend on where you got married. If your marriage was celebrated in France, it will be the civil registrar who conducted the marriage.  If your marriage was celebrated abroad, you must make your request to the Judicial Court of Nantes. You will need copies and translations of the Conditional Order (formerly Decree Nisi) and the Final Order (formerly Decree Absolute).