The French Cour de cassation has recently decided two important cases regarding forced heirship1. This court is the supreme court that deals with civil, commercial, and criminal cases. It confirmed an important appeal case that has been commented earlier on this blog. The Cour de cassation also decided another case that gives more information a limit to forced-heirship avoidance. These two decisions are a confirmation of the state of French law (1). Legal globalisation clearly has an effect on it. The practitioner has mixed feeling about it (2).
1. A confirmation of the state of French law
These cases confirm the state of the law regarding forced-heirship avoidance (1.1), the French passion for equality (1.2), and the necessity to establish that the estate plan does not leave any heir in need (1.3).
1.1 Forced-heirship avoidance
The reasoning followed by the lawyer in private international law has been exposed in the previous post on forced heirship2. This section will only present the legal solution.
These two cases confirm that forced heirship is an essential principle of French law but not an essential principle in French private international law. It means that :
A foreign law that ignores forced heirship can be applied. The estate plan cannot lead to the application of a foreignly law only to avoid forced heirship.
The court noted in both cases that facts that triggered the conflict rule that ultimately led to the application of Californian law took place long before the testator's death. Moreover, the testator lived in California for a long time. Hence, there is a serious connection between the law and the testator.
1.2 French passion for equality
This point may not seem as important to the lawyer practising in a common law jurisdiction as it is to the French lawyer. Forced heirship has been seen as a way to prevent the dispersion of assets. It nowadays appears as a mean to preserve equality. This is one of the reasons why forced heirship is seen by the Cour de casation as an essential principle in French internal law. A principle of non-discrimination between heirs has existed earlier in French private international law existed earlier in French law, but it had a different meaning. The article 2 of a statute of 14 July 1819 stated that a French national who received, as a result of the application of a foreign law, a smaller share than the one he would have received by application of French law could claim a share in a property located in France that belonged to the deceased3. This way of restoring equality has been seen as fair until 2011. The Conseil constitutionnel then decided that this right to claim a share of the property was unconstitutional since it could only be exercised by French citizens. It thus was violating the constitutional principle of equality in front of the law4. Rights of French heirs have been reduced as a result. It is striking in one of the cases where the testator left everything to his wife and to the children he had with her5. Passion can lead to results that do not always seem logical. It commands to set anything that could diminish the importance of equality aside. This application of the principle of equality was in these cases influenced by the fact that the heirs who could not get their share according the right of forced heirship were not in need. Moreover, the Cour de cassation noted in one of the cases that the heirs who received the whole estate were minors at the time of testator's death6.
1.3 Reasonable provision for heirs
The Cour de cassation does not evaluate facts but it makes sure that facts are examined according to law. It therefore made sure that Court of appeal checked that the forced heirs who did not receive their share were not in need. This seems the strongest limit to this new testamentary freedom in French private international law. This is similar to the reasonable provision requirement as recently discussed in Ilott v the Blue Cross and others7. This evolution of both English and French laws tends to confirm that they converge to the same point as it has been suggested here8.
This convergence invites the French practitioner to consider the globalisation of French law.
2 Considerations on the globalisation of French law
French law seems to be engaged on a slippery trail towards common law (2.1). If laws are to look more and more similar across the globe, local techniques used to tailor solutions for clients will help practitioners to stand out from the crowd (2.2).
2.1 A slippery trail towards common law
Common law jurisdictions seem nowadays more attractive to many than civil law ones. Two principles underlie French law of successions :
Universal succession: heirs are designated by law and have a right to the estate as a whole. Each heir has a right to a share of the whole estate alongside with other heirs. Other people can receive property by will for example. However, these people are not heirs. Forced heirship: some heirs can renounce their share but cannot be deprived of it. These heirs are none as "forced heirs".
If one of these principle exercises less influence, French law loses its specificity. This is a slippery trail towards common law since forced heirship still is an important principle in French black letter law. Such an evolution therefore requires to check the state of case law. It is far less accessible in France than in the UK for example since the Cour de cassation does not discuss precedents in its decisions but the application of black letter law. A foreign practitioner will therefore need the assistance of a local colleague.
Once this change has been acknowledged, there are reasons to be enthusiast about the future.
2.2 Local techniques for a globalised world
Globalisation is a vague term. It is hard to say what it exactly means. It is related to freedom of circulation. One can think that freedom of circulation benefits legal services that are not linked to any jurisdiction since they sell more easily at a very large scale. In a world where products and services tend to become similar the smallest difference is noticed. If these differences are identified with a local practice that is followed by the practitioner to achieve a reliable outcome, clients are likely to rely on these differences for future matters. Local techniques can therefore make a significant difference. Cards will be reshuffled. Major common law countries will not necessarily lead the trend since they also need to rethink the way they conceive trusts and estates. Practitioners who are willing to address new cross-border issues using deeply-rooted techniques are able to face new challenges.
In brief, this analysis of recent French decisions confirms that French law is getting similar to common law. This is disruptive but brings new opportunities to those who know that the law still needs to be shaped.