In a press release sent to the France Presse Agency (AFP) on February 12, 2018, Laura Smet announced that she intended to challenge the will of her father, Johnny Hallyday. As per the terms of said will, Johnny Hallyday reportedly left all of his property and artistic rights exclusively his last wife, Laëtitia Hallyday, as permitted under California law.
What are the chances of success of such a legal action in light of the most recent case-law developments?
In two decisions handed down on September 27, 2017, the First Civil Chamber of the Cour de Cassation (French Supreme Court) held that “a foreign law designated by the conflict-of-law rule, which excludes forced heirship, is not, in and of itself, contrary to French international public policy and may be set aside only if its effective application to the case at hand results in a situation that is inconsistent with the French law principles deemed to be fundamental”.
These decisions settle the debate over how forced heirship should be articulated with French international public policy.
Notaries usually recommend inserting a penalty clause in so-called deeds of donations-partage (i.e. inter vivos gifts for the division of estate among the presumptive heirs) and deeds of testaments-partage (i.e. inter vivos testamentary partition of estate) in order to make sure that the wishes of the donor/testator will be respected by the heirs.
The effectiveness of such a clause – which is lawful under certain conditions – was already questionable in inheritance disputes as French courts seemed reluctant to order their enforcement.
In a decision dated December 16, 2015 , the Cour de Cassation (French supreme Court) refused to enforce a penalty clause inserted in a deed of donation-portage – even though all of the plaintiffs’ claims were dismissed – and held that it was not established that the initiated legal proceedings were abusive in light of the provisions set forth in Article 6 § 1of the European Convention on Human Rights.
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