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The International Jurisdiction of the French Courts in Succession Matters

Several sets of rules may provide a basis for the international jurisdiction of the French courts in succession matters.

It must first be determined whether the law of the European Union confers jurisdiction upon the French courts (A). If this is not the case, it must then be examined whether the general rules of French private international law provide such a basis (B).

A. European Union Law

Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 concerns jurisdiction, the applicable law, the recognition and enforcement of decisions, the acceptance and enforcement of authentic instruments in matters of succession, and the creation of a European Certificate of Succession.

1. Scope of Application of Regulation (EU) No 650/2012

Legal basis

The Regulation applies where three cumulative conditions are satisfied.

First, the Regulation must apply ratione materiae. Article 1(1) provides that the Regulation applies to successions to the estates of deceased persons. Certain matters are expressly excluded from its scope under Article 1, including tax, customs and administrative matters, as well as issues relating to the status and legal capacity of natural persons.

Secondly, the Regulation must apply ratione temporis. Pursuant to Article 83, the Regulation applies to the succession of persons who died on or after 17 August 2015.

Thirdly, the Regulation must apply ratione loci. The Regulation applies where proceedings have been brought before the courts of a Member State of the European Union.

2. Jurisdiction under Regulation (EU) No 650/2012

a) General Rule: Article 4

Legal basis

Article 4 of the Regulation establishes the general rule:

“The courts of the Member State in which the deceased had his or her habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole.”

Recitals 23 and 24 provide guidance on the determination of the deceased’s habitual residence at the time of death.

According to Recital 23, the authority dealing with the succession must make an overall assessment of the circumstances of the deceased’s life during the years preceding death and at the time of death, taking into account all relevant factual elements, in particular the duration and regularity of the deceased’s presence in the State concerned, together with the conditions and reasons for that presence.

The habitual residence should disclose a close and stable connection with the State concerned.

Recital 24 identifies further factors that may be relevant where determining the habitual residence proves more complex.

“In certain cases, determining the deceased’s habitual residence may prove complex. This may arise, in particular, where the deceased had gone to another State for professional or economic reasons in order to work there, possibly for a considerable period, whilst maintaining a close and stable connection with his or her State of origin. In such circumstances, and depending on the particular facts of the case, the deceased could be regarded as still having had his or her habitual residence in the State of origin, where the centre of his or her family and social life was located.

Other complex situations may arise where the deceased alternated between several States or travelled from one State to another without settling permanently in any of them. If the deceased was a national of one of those States or had the principal part of his or her assets there, nationality or the location of those assets may constitute a special factor in the overall assessment of the factual circumstances.”

b) Subsidiary Jurisdiction: Article 10

i. Jurisdiction to Rule on the Succession as a Whole

Legal basis

Pursuant to Article 10(1) of the Regulation, where the deceased did not have his or her habitual residence in a Member State at the time of death, the courts of the Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on the succession as a whole, provided that one of the following alternative conditions is satisfied:

• the deceased was a national of that Member State at the time of death; or, failing that,
• the deceased had previously had his or her habitual residence in that Member State, provided that no more than five years have elapsed between the change of habitual residence and the date on which proceedings were instituted.

ii. Jurisdiction Limited to the Assets Located in the Member State Concerned

Legal basis

Article 10(2) provides that, where no Member State has jurisdiction pursuant to Article 10(1), the courts of the Member State in which assets of the estate are situated shall nevertheless have jurisdiction to rule in respect of those assets.

B. General French Private International Law

Two sets of rules may provide a basis for the international jurisdiction of the French courts: the general rules of jurisdiction (1) and the jurisdictional privileges based on the nationality of the parties (privilèges de juridiction) (2).

The jurisdictional privileges are merely subsidiary to the general rules of jurisdiction (Cass. 1st Civ., 19 November 1985, No. 84-16.001, Cognacs & Brandies).

In other words, the jurisdictional privileges apply only where the general rules of jurisdiction do not establish the international jurisdiction of the French courts.

1. General Rules of Jurisdiction

It has long been established that the rules governing international jurisdiction are derived by transposing the domestic rules of territorial jurisdiction—particularly Articles 42 et seq. of the French Code of Civil Procedure (Code de procédure civile)—to the international sphere (Cass. 1st Civ., 19 October 1959, Pelassa; Cass. 1st Civ., 30 October 1962, Scheffel).

The general rule is laid down in Article 42 of the French Code of Civil Procedure (a).

Furthermore, French private international law distinguishes between succession to movable property and succession to immovable property, resulting in a division of jurisdiction over the estate.

Accordingly:

• the French courts have jurisdiction over succession proceedings concerning movable property where the deceased was domiciled in France (b-i); and
• the French courts have jurisdiction over succession proceedings concerning immovable property where the property is situated in France (b-ii).

a) General Rule: Article 42 of the French Code of Civil Procedure

Legal basis

Article 42 of the French Code of Civil Procedure provides:

“Unless otherwise provided by law, the court having territorial jurisdiction is the court of the place where the defendant is domiciled.”

Applied in the international context, this rule means that the French courts have jurisdiction where the defendant is domiciled in France.

Article 43 further provides that the domicile of a natural person is his or her domicile or, failing that, his or her habitual residence.

b) Special Rules Applicable to Successions

i. Succession to Movable Property

Legal basis

With respect to succession to movable property, Article 45 of the French Code of Civil Procedure provides:

“In matters of succession, the following claims shall be brought before the court within whose territorial jurisdiction the succession has been opened, until the final partition of the estate:

• disputes between heirs;
• claims brought by the creditors of the deceased;
• claims relating to the implementation of testamentary dispositions.”

Article 720 of the French Civil Code (Code civil), introduced by the Act of 3 December 2001, provides:

“A succession is opened upon the death of the deceased at his or her last domicile.”

Applied in the international context, these principles mean that the French courts have jurisdiction to determine disputes relating to the deceased’s movable estate where the deceased had his or her last domicile in France.

The court having jurisdiction may hear any dispute relating to succession rights concerning movable property, irrespective of where the assets are situated.

The deceased’s last domicile is determined in accordance with French law. Under French civil law, domicile requires both an objective element (actual residence) and a subjective element (the intention to establish oneself there permanently). Only the civil-law concept of domicile is relevant; tax residence is of no significance. Whether a person was domiciled in France is a question of fact to be determined by the courts on a case-by-case basis.

ii. Succession to Immovable Property

Legal basis

As regards succession to immovable property, jurisdiction is, as a matter of principle, vested in the courts of the place where the property is situated, owing to the particularly close connection between immovable property and its location.

This principle is reflected in Article 44 of the French Code of Civil Procedure, which provides:

“In matters concerning rights in rem over immovable property, the court of the place where the property is situated shall have exclusive jurisdiction.”

The French Supreme Court has confirmed that this principle also applies to succession proceedings relating to immovable property (Cass. 1st Civ., 15 May 2018, No. 17-11.571, Bulletin civil 2018, I, No. 83), holding that territorial jurisdiction depends exclusively on the location of the property, irrespective of the law applicable to the succession or the deceased’s domicile.

Accordingly, the French courts have jurisdiction only in respect of succession disputes relating to immovable property situated in France (Cass. Civ., 14 March 1961; Cass. 1st Civ., 23 January 2007, No. 06-11.037).

It follows that a foreign court cannot determine a succession dispute concerning immovable property situated in France. Conversely, a French court has no jurisdiction to determine a succession dispute relating to immovable property situated abroad (Cass. Civ., 5 July 1933; Civ., 24 November 1953).

2. Jurisdictional Privileges (Privilèges de juridiction)

Legal basis

Articles 14 and 15 of the French Civil Code (Code civil) confer international jurisdiction upon the French courts solely on the basis of the nationality of the parties: the claimant’s nationality under Article 14 and the defendant’s nationality under Article 15.

These jurisdictional privileges apply to all areas of law, including succession matters.

However, French case law has identified two categories of proceedings in which these jurisdictional privileges do not apply:

• actions in rem relating to immovable property, as well as actions for the partition of immovable property situated abroad; and
• proceedings relating to enforcement measures carried out outside France.

This principle was established by the leading decision in Weiss (Cass. 1st Civ., 27 May 1970, No. 68-13.643), in which the French Supreme Court held:

“Article 14 of the French Civil Code, which entitles a French claimant to bring proceedings against a foreign defendant before the French courts, is of general application and extends to all categories of litigation, with the exception of actions in rem relating to immovable property and actions for the partition of immovable property situated abroad, as well as proceedings relating to enforcement measures carried out outside France. In particular, it applies to all disputes arising from non-contractual liability.”

Accordingly, Articles 14 and 15 of the French Civil Code may provide a basis for the jurisdiction of the French courts in succession matters, save in relation to disputes concerning immovable property forming part of the estate where such property is situated in the territory of a foreign State.

For the purposes of applying these provisions, only the nationality of the heir concerned is relevant: the claimant’s nationality where Article 14 is relied upon, or the defendant’s nationality where Article 15 is invoked. The nationality of the deceased is irrelevant.

Nationality is assessed as at the date on which proceedings are commenced. Any subsequent change of nationality has no effect on jurisdiction.

Since Articles 14 and 15 of the French Civil Code establish a jurisdictional privilege for the benefit of French nationals, the party wishing to rely upon that privilege must invoke it expressly.

If the party entitled to rely on the jurisdictional privilege fails to do so, the court may not raise it of its own motion (ex officio) (Cass. 1st Civ., 19 July 1989, No. 88-12.592, Bulletin civil 1989, I, No. 296).