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International inheritance: do you enjoy full rights concerning the disposal of your estate?

Home > Inheritance and succession | Published 2017-01-03

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After great thought, you have decided to anticipate the conveyance of your estate by drafting a legal instrument (will, agreement, etc.). Although you may have the possibility of designating the laws of a given State with authority to settle the future conveyance of your estate, you must nonetheless be careful not to infringe upon the mandatory provisions of public policy. What are these provisions? What are their consequences? The PICOVSCHI Attorneys firm can provide answers to your questions.

What is international public policy?

This exceptional alternative offered under international public policy, often raised by judges or during proceedings initiated before them by one of the parties, is an opportunity to maintain a certain level of legal security. It is a manner of protecting the parties’ interests as well as the security of the legal system. How is this achieved? By eliminating the foreign legislation designated as the one which applies, because considered as contrary to domestic public policy.

This eliminatory mechanism was reiterated in Article 35 of the 2012 European regulation disregarding the legislation designated by the deceased if it is in conflict with the principle and legal concepts of the state called upon to rule.

Whether you intend to anticipate the future conveyance of your estate or are yourself heir, legatee in conflict with other entitled parties, calling upon the services of an attorney specialized in international probate law can prove to be of great assistance.

Thus, the principle set forth in Article 22 of said Regulation permitting any individual to choose, on certain conditions, the law which will govern his estate, has its limits, namely those represented by the police laws (international public policy) and fraud.

What therefore are the provisions of public policy which must be respected?

It is impossible to establish an exhaustive, precise list given that international public policy varies from one state to another and changes with time (practices, morality, etc.). A case-by-case appreciation is therefore necessary.

Thus, for example, the French courts called upon to rule on the standard which applies will eliminate any foreign legislation which is contrary to its domestic principles.  This is the case when the deceased chooses the law of a State of which he is a citizen, aware that this law discriminates between children born of different (extra-marital, adulterous) unions, or due to their religion, gender, etc.  This standard will therefore be rejected to be replaced by the lex fori.

Another particular case which is subject to discussion, because it falls into the scope of domestic French public policy and not international public policy: the case in which a person of French and English nationality designates English law explicitly to govern his estate for the purpose of disinheriting his children. Indeed, it is noteworthy that certain countries (in particular Common law countries, such as England) do not acknowledge the rightful heir principle. Thus, the deceased may have eluded French rules by eliminating his rightful descendants.  It will therefore be up to the judges intervening in the case either to respect the will of the deceased, or to ignore it by applying domestic law.  It is up to the courts alone to settle the issue.

Call upon the assistance of an attorney experienced in the domain of international probate disputes involving several states.  He will be able to guide you and advise you as to your rights.  He will defend you better than if you were to decide to confront such a situation alone.

The PICOVSCHI firm, a Parisian attorneys firm created in 1988, is often called upon to handle complex inheritances opposing heirs and/or legatees, whether it be for reasons of conflict of laws, contesting donations, etc.  Regardless of the origin of the dispute, our attorneys, seasoned in this field, will lead you to victory!

This article is available online for public information purposes. It is updated regularly, as needed. Due to the constant evolution of the laws and the legal system, we cannot guarantee that the information in this article is still applicable. We invite you to contact us with any legal questions or concerns you have regarding this topic at +33 1 56 79 11 00. In no way can this firm be held liable for articles that contain inaccuracies or are now out of date.

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