International Estate. Determining the deceased’s habitual residence

By a decision of 29 May 2019 (No. 18-13.383), the First Civil Division of the French Supreme Court specifies the criteria to be used to determine the place of habitual residence of the deceased in order to establish jurisdiction of the courts called upon to rule on his Estate.

First of all, it should be pointed out that in this case, the deceased had died on May 10, 2016, i.e. after the entry into force of Regulation (EU) No 650/2012 of the European Parliament and of the Council of July 4, 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. 

We recall that one of the interests of this Regulation was to put an end to the fragmentation of Estates previously known in French law, jurisdiction of the courts called upon to rule then being based on separate criteria depending on whether the Estate was composed of movable or immovable assets. 

Thus, under Article 4 of this Regulation, the courts having jurisdiction to rule on the entire Estate opened as from August 17, 2015 are those of the Member State in which the deceased had his habitual residence at the time of his death. 

It remains to be determined according to which criteria habitual residence must be assessed because the Regulation does not define this concept. Only recitals 23 and 24 of that Regulation shed light on the criteria that courts may use to determine habitual residence. In this respect, recital 23 recalls that the objective of the Regulation is to « ensure that a genuine connecting factor exists between the succession and the Member State in which jurisdiction is exercised », which Courts must keep in mind when deciding. 

The French Supreme Court therefore has the opportunity here to confirm the interpretation of the Court of Appeal, which expressly referred to recitals 23 and 24 of the preamble of the Regulation in order to establish the criteria for determining the place of 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, habitual residence thus determined should reveal a close and stable connection with the State concerned taking into account the specific aims of this Regulation ; that in the cases where determining the deceased’s habitual residence may prove complex, for example, when he lived alternately in several States or travelled from one State to another without having permanently settled in a State, his nationality or the location of his assets could be a special factor in the overall assessment of all the factual circumstances ». 

In this case, the difficulty was that the deceased seemed to share his time between France and the United States, « without the duration of the stays in one or the other country being decisive for the resolution of the dispute ». It was therefore necessary for the Court of Appeal to assess habitual residence according to the other criteria put forward by the Regulation in order to establish a close and stable link with one of the two countries rather than the other. 

After having validated the reference to the criteria set out in recitals 23 and 24 of the Regulation, the French Supreme Court dismisses the appeal on the ground that the assessment of the facts and evidences submitted by the parties falls within the sovereign discretion of the judges of lower courts. 

Nevertheless the Supreme Court takes the trouble to recall the many elements that allowed the Court of Appeal to conclude that the deceased’s habitual residence was in New York, in the United States, and not in France, including : the deceased’s American nationality, the drafting of his will in New York, in which he described himself as « resident in New York », the location of most of his family, assets and tax domicile in the United States, the exercise of his professional activities and his right to vote in the United States throughout his life, and the absence of any connection with any medical care reimbursement body in France.  

The consequence of locating the deceased’s habitual residence in New York, in the United States, is the lack of jurisdiction of French Courts to rule on his Estate, and therefore, the impossibility for the disinherited daughter of the deceased to get French law to apply to the Estate of her father and to have the will invalidated on the grounds of the infringement of her hereditary reserved share of the Estate. 

Indeed, the determination of the deceased’s habitual residence makes it possible not only to establish the court’s jurisdiction to rule on the Estate but also, and according to the same criteria, the law applicable to the entire Estate. 

It should be noted that Article 10(2) of the Regulation nevertheless provides for residual jurisdiction of the court of the place where the Estate is located when the deceased’s habitual residence at the time of death is not located in a Member State and no court of a Member State has jurisdiction under paragraph 1.

With this decision, it is clear that it is of great interest and importance for litigants to be able to determine precisely the place of the deceased’s habitual residence, which must correspond to a factual reality that is difficult to manipulate. But cases are many where debate is still allowed when the deceased really had several residences during his lifetime and the connection with one rather than another is not obvious.

Audrey KANDALA

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