French Property and Forced Heirship: Will Your Australian Will Be Followed in France?
(What Franco-Australian families need to know before making a will)
If you live in Australia and own a house or apartment in France, a will drafted in the usual Australian way may not be enough to give effect to your wishes.
French law has forced heirship (réserve héréditaire): a minimum share of the estate must pass to the children. A parent cannot disinherit a child, or favour some children beyond a set limit.
What is forced heirship?
Article 913 of the French Civil Code limits the share you can leave freely (the "disposable portion"):
• 1 child: reserved share 1/2, disposable portion 1/2
• 2 children: reserved share 2/3, disposable portion 1/3
• 3 or more children: reserved share 3/4, disposable portion 1/4
The reserved share is divided equally between all children, whichever marriage they were born of.
When does it apply to an Australian resident?
Where the will contains no choice of law, the EU Succession Regulation (No 650/2012) applies the law of the deceased's habitual residence (Article 21) – here, Australian law.
Australian private international law, however, distinguishes between:
• movables (bank accounts, investments), governed by the law of the deceased's domicile – Australian law, with no forced heirship;
• immovables, governed by the law of the place where the property is located.
France accepts this renvoi (Article 34 of the Regulation). As a result, French law – and forced heirship – applies to your real estate in France.
A real case
A mother living in Australia had six children: four from her first marriage and two from her second. She had inherited her second husband's house in France.
Her Australian lawyer drafted two wills: one for her Australian assets, shared between all her children; and one for her French assets (the house and bank accounts), left to the two children of the second marriage.
The "French will" contained no choice-of-law clause. The French notary therefore applied forced heirship:
• the bank accounts went to the two named children, as intended (Australian law);
• for the house, each of the six children received a reserved share (1/8). The two named children received only the disposable portion (1/4) on top. Together, they received half the house instead of all of it.
The heirs argued that the will contained an implied choice of Australian law: executors and trustees, wide powers, Australian tax terms. That argument could not succeed. Article 22 of the Regulation requires a choice made expressly, or clearly demonstrated by the terms of the will. Australian drafting style is not a choice of law.
Yet the deceased was an Australian citizen. A simple clause choosing Australian law would have been enough to exclude forced heirship over the house, subject only to the French compensatory claim (see below).
How to avoid it: drafting the will
1. Include an express choice-of-law clause (professio juris). You may choose the law of a State whose nationality you hold (Article 22). An Australian citizen can therefore submit their whole estate, including French property, to Australian law. Renvoi is then excluded (Article 34(2)) and forced heirship does not apply.
2. Name the Australian State (for example, New South Wales), as each State has its own succession law.
3. Coordinate all your wills: the same clause in every will, covering the estate as a whole.
4. Check the French "compensatory claim" (prélèvement compensatoire). Since 1 November 2021, if the deceased or any child is an EU national or EU resident at the time of death, each child may recover their reserved share from assets located in France (Article 913, paragraph 3). A choice of Australian law therefore does not always fully protect your wishes.
5. If you are a French national only, you cannot choose Australian law. Your will must then stay within the disposable portion, and other planning tools should be considered.
Why specialised advice about French forced heirship in Australia is essential
A will can be fully valid in Australia and still produce an unexpected result in France. At Prince Lawyers International, we regularly assist Franco-Australian families with:
• drafting or reviewing their Australian and French wills,
• inserting an appropriate choice-of-law clause,
• planning around forced heirship and the compensatory claim,
• working with the French notary to settle the estate.
Own property in France? Let's talk.
A single clause in your will can change the outcome for your family.
For tailored advice, reach out to Prince Lawyers International
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