Richard Woodward, Associate Solicitor in the Dispute Resolution Team at Bray & Bray, considers the fairness of the Inheritance Act in the UK, describes how inheritance rules work in France, and the potential implications for the UK.
The Inheritance Act
As a practitioner who deals with many an inheritance dispute, I have often heard it said that the provisions of the Inheritance (Provision for Family and Dependants) Act 1975 (“Inheritance Act”) that allows those omitted from a Will the opportunity to challenge that Will, as being unfair. It is said that this statutory instrument stops the wishes of the deceased being followed.
However, there are policy reasons as to why the Inheritance Act was brought into force and it is still difficult to establish a successful claim unless the claimant can show that the Will has not made reasonable financial provision for them (based on their current circumstances). A surviving spouse or civil partner only has to show that the Will has not provided maintenance in all of the circumstances.
Further, the inheritance rules are a lot stricter in other jurisdictions where there are enforced heirship laws – take, for example, our neighbour France.
Inheritance rules in France
Under the French Civil Code, a Testator must leave part of his estate to his children, be they legitimate or illegitimate. The share that child (or those children) is entitled to depends on how many offspring the Testator has. If they have one child, that child has to receive half of their parent’s estate; if they have two children, they are entitled to one third each and for three or more, three quarters of the estate will be split between them.
As some people in the UK have assets in France, this can be concerning. If a parent wished to ‘disown’ their child from their Will, they run the risk of falling foul of the French succession laws. However, until recently, the Brussels IV succession provisions allowed Testators in EU Member States to place a ‘jurisdiction’ clause in their Will which instructed the property to pass accordingly to the country’s succession laws that they chose. This didn’t affect taxation laws, but it did ensure (subject to challenge under the Inheritance Act) that the UK succession laws would be followed if that was what the Testator wanted.
From 1 November 2021, this changed and it was not the fault of Brexit. The French government has passed new legislation which allows any heirs that would, under French heirship laws, be entitled to a share of the deceased’s estate, to claim the same notwithstanding a jurisdiction clause within the Will. This only applies in EU member states where forced heirship laws do not exist, so the impact on UK citizens may be insignificant after Brexit but nevertheless, considering that forced heirship laws are not law in the UK, there is a chance that these provisions may be widened.
The changes put French law in direct opposition to Brussels IV so we do not know what challenges will follow but it does go to show that, although there is opposition to the Inheritance Act in the UK, if we lived under French law (or likewise forced heirship laws), Testators would not have the freedom they do in this jurisdiction.