In England and Wales we enjoy what is known as freedom of testamentary disposition. In layman’s terms this means that we are free to dispose of our estate however we see fit, subject to certain protections to ensure that the will in fact reflects the wishes of the person making it and that reasonable financial provision has been made for certain eligible parties.
Conversely, France, as with many other ‘civil law’ jurisdictions across Europe and the world, applies ‘forced heirship’ rules. Under French succession law, and subject to a person’s “domicile” or “habitual residence” as the case may be, therefore, a proportion of a person’s estate is automatically reserved for their children, known as la réserve.
That reserved amount depends on the number of children and limits the amount which a person can freely dispose of.
In the case of Johnny Hallyday’s will, it appears that his children’s main challenge is that it fails to account for la réserve by purporting to gift his entire estate to his wife and adopted children, this ignoring the reserved portion.
As to whether or not their claim on that basis will succeed depends upon Hallyday’s domicile at the date of his death as that will determine which law will apply to the devolution of his estate.
Whilst the rules vary from country to country, in England and Wales every person is deemed to be born with a ‘domicile of origin’ which generally mirrors the birth place of their father.
Subject to any change, it will usually be that domicile which then governs how a person’s estate is distributed. Thus, if Hallyday had a French domicile of origin, assuming he had not acquired a new ‘domicile of choice’, his estate would be governed by French law and so all his real property in France along with his worldwide cash assets would have to be distributed in accordance with France’s succession law, including its forced heirship rules. However, the general rule is that any real estate in any other country could be distributed in accordance with that country’s laws.
In the event that Hallyday was deemed to have acquired a domicile of choice in California (US succession law differing from state to state), then, subject to any questions over the will’s validity, his real property there, along with his worldwide cash estate, would pass in accordance with the terms of his will.
However, it is likely that any real property in France would still be subject to France’s succession laws such that, come what may, a proportion of it would have to pass to Hallyday’s children.
As more people are buying assets abroad, leading peripatetic lifestyles or moving abroad later in life, these issues are likely to arise more frequently. As such, the key is to ensure prudent estate planning when making any will(s) dealing with your assets.
Thereafter, it is crucial to understand the interplay between the various jurisdictions and the laws which may apply when considering contesting a will where foreign assets are involved.
