Another Example Of Why You MUST Make Your Foreign Will

I have said it before and it bears repeating “ALL ADULTS SHOULD MAKE A WILL”. Further, if you are domiciled in England and now own property abroad you should make a separate Will to be used in each Country where you own assets

I have been contacted this month on behalf of a young widow. She and her husband bought a house in France. Like many young adults with a young child neither of them had given a thought to the possibility of sudden death.

When the husband did die he had made no Will. In England in this case the inheritance rules operated to transfer his property to his widow. BUT- Please note that even in England this is not always the result. For example if a husband with substantial wealth dies in England without a Will then the amount that will pass to his Widow may be a very small percentage what he owned, if he leaves children parents or siblings living. Please read that last sentence again. Many people simply don’t believe it.

However, in France there is a rule that a parent who dies without a Will MUST leave a defined share for his child or children.

In this case the husband had brought the French house jointly with his wife. The law of France now means that the husband’s half share is split between the widow and his young daughter equally – even though the couple were by no means so sufficiently wealthy that the widow can now afford to give to the daughter a share in the house worth many thousands of pounds.

As if that was not bad enough – the further problem is that the daughter is a child and yet is the actual owner of a share of the house. This effectively means that the house cannot be sold.

The reason for this is that in English law an English child cannot own or buy or sell land or a share in land: however the land is in France and French law says that the English child does own land. French law has a procedure for dealing with this situation – if the child had been a French citizen or domiciled in France then a French Notaire could be appointed to sign papers on behalf of the child.

But a French Notary cannot act in this way on behalf of an English child. In England there is really no provision for this situation because as I say it is presumed in England that a child will not own land in the first place, so there is no need for a procedure to enable a child to sell land.

The choices therefore are first to accept that the property cannot be sold for many years until the Child is an adult. This means that the money value is locked up in the house which the Widow no longer wants to visit – it has therefore turned from an asset into an unwanted and deteriorating liability.

Another option is to make an application to the English High Court under the innate powers of the High Court to assist. Even in the event that a French Notaire co-operates with such an application it would likely cost in the region of £10,000 in Court and lawyers’ fees in England and France.

This situation is just one further example as to why every Notary says to clients – always make a Will and always make separate ones in respect of your assets in separate Countries.