Does Your Will Apply To Your Foreign Assets?

The French rock legend Johnny Hallyday died in December 2016 from lung cancer. Known as France’s Elvis Presley, Hallyday sold over 110 million records and performed famously in front of over a million people at the Champs-Elysees during a festival.

Having made a fortune from his distinguished musical career, he understandably lived a lavish lifestyle. He left France (his home country) for tax reasons and emigrated to California, where he made a Will.

Johnny Hallyday estate and inheritance laws

In his lifetime he married four times, and had two children – Laura Smet and David Hallyday. He adopted two other children with his fourth wife, Laeticia, whom he was married to at the time of his death.

Hallyday made his Will later in life and gifted his entire estate to Laeticia, including some French property. This has caused uproar in France – where forced heirship happens by law. Many people have sympathy with Laura and David, who have effectively been disinherited by their father and they are currently considering legal action. However, this story has raised the interesting question of jurisdiction when assets are owned in many countries.

Under French inheritance law, half of Hallyday’s estate would go to his surviving spouse and of the other 50%, three quarters would be left to his children (including his adopted children) in equal shares. It would then be up to Hallyday to decide who should receive the remaining eighth of his estate. In a nutshell, Laura and David would have expected to receive at least a decent slice of the net estate and they are considering challenging the Will on the basis that these forced heirship rules have not been adhered to.

However, the Will was made in California. In England and Wales and in California, there is no forced heirship and you are generally free to choose who will inherit from you. Many people living in one country but owning foreign assets will make a Will in their home country, and there only, with the intention of dealing with all their worldwide assets.

Inheritance disputes concerning foreign assets

The question therefore is what happens if the testator (the person making the Will) owns property abroad, and in the case of Johnny Hallyday, in France, and surviving relatives challenge the Will on the basis of forced heirship rules. Can this be done in France under French law or must it be done in California? Or are Laura and David stuck with the Will? The answer, as you may guess, is that it depends.

Very recently, an EU regulation changed the way in which land owned in foreign states is dealt with post-death. It is now possible for land owned in France to be dealt with in accordance with a foreign Will, thus avoiding the forced heirship rules. However, the UK opted out of this regulation – this was because there was reluctance to allow land situated here to be dealt with according to foreign jurisdictions. Therefore, whilst there are exceptions, it is likely that land owned by UK residents in France will be subject to forced heirship rules.

This may encourage British beneficiaries who find themselves in the same situation as Johnny Hallyday’s children, who may well be able to bring a claim for provision from their late father’s estate. A key lesson from this scenario is that whilst people in England and Wales are generally free to leave their property to whoever they choose, care should always be taken when dealing with immovable property based overseas, and usually it is sensible to make a Will in that country.