Legal
Domicile And Disputed Wills - The Impact Of Social Media

A case involving the French entertainment star has highlighted the role social media can play in swaying decisions about domicile for the purposes of contested wills.
Domicile – the increasing prominence of social media
In today's world, cross-border issues throw up complexities
around matters such as divorce, inheritance and wealth transfer.
The European Union in 2015, for example, enacted a succession
directive, known as "Brussels IV" to give citizens in several EU
member states (excluding the UK, Ireland and Denmark) greater
freedom over the jurisdictions in which their wills are
recognised.
The use or misuse of domicile can come to light in a number
of ways. A recent case involving the use of social media and a
famous deceased French pop star adds to the mix. To discuss this
issue is Amy Lane, solicitor at Thomson
Snell & Passmore, the law firm.
The editors of this news service are pleased to share views about
this matter and invite readers to respond. Email tom.burroughes@wealthbriefing.com
and jackie.bennion@clearviewpublishing.com
The question of domicile is important when deciding which law (and taxes) apply to your estate. The death of France’s biggest rock star, Johnny Hallyday, has thrown domicile back into the spotlight once again, largely due to the use of Instagram.
Once dubbed the French Elvis, Johnny’s death has caused an
ongoing dispute between his widow and two of his children. Johnny
had spent much of his time in Los Angeles and obtained a green
card, having said that he would never return to France unless
their tax laws changed, following the introduction in 2014 of 75
per cent tax on income over €1.0 million ($1.11 million).
Johnny’s will left his estimated £89 million estate to his wife,
Laeticia and disinherited two of his children, Laura and David,
from previous relationships. Laura and David brought a
claim against his estate in France to argue that their father was
domiciled there at his death, using his Instagram account to
prove that he was most closely connected to France, not Los
Angeles. A successful claim would mean the law on French
heirship would apply, meaning Laura and David would inherit,
despite Johnny’s Will saying otherwise.
French law imposes forced heirship based on the Napoleonic Code.
This means that you cannot divide your estate freely as you
desire under the terms of your will. French law specifies a
minimum proportion of your assets, whether worldwide or in
France, must pass to your children and you cannot use your Will
to avoid this. By comparison, under English law, you are free to
dispose of your assets as you see fit under the terms of your
will. It is only the rules of intestacy (where you die without a
will) that dictate where your assets go on death.
In addition, under English law, certain individuals have an
automatic right to bring a claim for reasonable financial
provision through the courts against an estate under the
Inheritance (Provision for Family and Dependants Act) 1975,
provided the deceased was domiciled in England & Wales at
death. In France, you are not entitled to bring a claim
against an estate for financial provision unless you are a spouse
or parent of the deceased. Therefore, Laura and David would not
have been able to bring such claim and therefore had to rely on
domicile.
Prior to 17 August 2015, two laws applied to your assets on
death. Moveable assets i.e. bank accounts devolved in accordance
with the country of residence at death, and immoveable assets
i.e. property devolved in accordance with the law where the asset
is located.
In 2015, Brussels IV came into force which specifies that the
default position is that the succession of your estate depends on
your habitual residency at death. However, if you live in
an EU country (other than the UK, Republic of Ireland and
Denmark), you can choose under the terms of your wll (by
including an express declaration) to elect that the law of your
nationality apply. Therefore, if you are an English national who
is resident in France, you can elect that the law of
England and Wales applies to the devolution of your estate,
thus avoiding the forced heirship rules.
It must be emphasised, the law that applies to your estate on
death is different to the application of the tax on your estate,
and if you are minded to leave your estate differently to the
forced heirship rules in France, it is recommended that tax
advice is taken.
Interestingly, in this case, the French courts took into account
Johnny’s Instagram posts which showed a timeline of his movements
before his death. Laura and David argued that the 151 days he
spent in France in 2015 and the further eight months leading up
to his death, where he was being treated for cancer. The
French Court agreed with their timeline of events, ruling that
Johnny’s estate should pass in accordance with the rules on
French succession, concluding this was his last domicile, and
therefore forced heirship governed the succession of his estate,
not his will.
The decision is going to be appealed but nonetheless serves as a
useful reminder about the increasing prominence of social media,
not only in lives today, but after death too.