You know that it may be tempting to change the law or jurisdiction applicable to a succession to avoid forced heirship.1 You also know that some people may try to use a life insurance policy to avoid it.2 This kind of avoidance may be seen as a fraud designed to avoid the jurisdiction of a court. Article 4 of a regulation known as the EU Succession Regulation 650/2012, hereafter the EU Succession Regulation provides that:
"The courts of the Member State in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole."
How does one combine the European concept of habitual residence with that of fraud in French private international law regarding successions?
When it comes to fraud, you know from cases analysed elsewhere in earlier posts mentioned in footnote 1 below that to one has to consider the whole life of a person AND to show that this person mainly wanted to avoid the application of a given domestic law.
It has been claimed that the Court of Appeal disregarded ignored that the deceased starting spending time in Portugal as early as 2014 before moving there permanently in 2016 and that he started attending Portuguese classes. The deceased had not had any cancer relapse for some time before he moved to Portugal.3
It is worth noting that is common among French pensioners to move aboard in search of a cheaper life and some sun.
Is it enough to rely on the fact that a person moved to another country shortly before death to show that his main goal was to avoid French courts to have jurisdiction?
The French Cour de cassation relied on Recital 23 of the EU Succession Regulation to reexamine the reasoning of the Court of Appeal. The said Recital provides that:
"In view of the increasing mobility of citizens and in order to ensure the proper administration of justice within the Union and to ensure that a genuine connecting factor exists between the EU Succession and the Member State in which jurisdiction is exercised, this Regulation should provide that the general connecting factor for the purposes of determining both jurisdiction and the applicable law should be the habitual residence of the deceased at the time of death. In order to determine the habitual residence, the authority dealing with the succession should make an overall assessment of the circumstances of the life of the deceased during the years preceding his death and at the time of his death, taking account of all relevant factual elements, in particular the duration and regularity of the deceased’s presence in the State concerned and the conditions and reasons for that presence. The habitual residence thus determined should reveal a close and stable connection with the State concerned taking into account the specific aims of this Regulation."
The Cour de cassation that is the supreme court that deals with civil, commercial, and criminal cases does not reexamine pieces of evidence. It has found that the appeal judges had correctly used facts to show that the deceased and his wife still had the legal title to a French piece of immoveable property after the move to Portugal, that the deceased had started taking Portuguese classes very late in life, and that most of his connections were still located in France despite his move. The Cour de cassation has dismissed the claims.
Is the French approach based on the main goal compatible with the one based on Recital 23 of the EU Succession Regulation? Yes, discovering the main goal behind an action requires some intuition since one is dead at the time of one's succession. Proving the main goal of a dead person requires in practice to tightly link facts to an alleged intention. This array of evidence is then used to highlight a connection to a court or a piece of legislation. The difference between these two approaches is formal.
In brief, the tighter the array of evidence is, the closest the connection to a jurisdiction is.
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Forced heirship: How does it matter?; French forced heirship revitalised? ↩
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C. Cass., Civ. I, 12 July 2023, 21-10.905 21-11.041. ↩