Dit artikel is nog niet in het Nederlands vertaald; de vertaling volgt binnenkort. Hieronder leest u de Engelse versie.

Will vs. Forced Heirship: Why Your Will May Not Do What You Think

If your assets or heirs sit in more than one country, your will can be perfectly valid where you wrote it and still be overridden elsewhere. Some countries reserve a fixed share of your estate for your children by law, whatever the will says. Having a will isn't enough. You also need to check the countries involved against each other.

Two Legal Families, Two Very Different Ideas

Countries fall into two camps on who gets your estate (everything you own when you die). One lets you choose freely. The other limits your choice.

• Common-law jurisdictions (the UK, most of the US, much of the Commonwealth) generally follow testamentary freedom. That means you can leave your estate to whoever you want, subject to limited claims from dependants in some places.
• Civil-law jurisdictions (France, most of continental Europe, much of Latin America) apply forced heirship. A fixed portion of the estate, the réserve héréditaire or its equivalent, is reserved by law for children and sometimes a spouse, regardless of what the will says. In France, for example, the reserved portion scales with the number of children: up to three-quarters of the estate can be protected from disinheritance, depending on how many children there are.

Here's the catch. Say you write a will under common-law assumptions, disinheriting a child or leaving everything to a second spouse. It can be perfectly valid where it was written and still be overridden, in whole or in significant part, the moment it touches an asset located in a forced-heirship country, or an heir who lives in one.

Which Country's Law Applies to Which Asset?

Each country uses a "situs" rule, meaning a rule about where an asset sits, to decide which succession law applies. Most use one of two approaches.

• Unity of succession means one law governs the whole estate, wherever the assets are. That law is usually based on the deceased's nationality, domicile (roughly, the country you treat as your permanent home) or habitual residence at death. The EU Succession Regulation (Brussels IV), which most EU member states apply, works this way. Habitual residence at death generally governs, unless the deceased chose their nationality's law in the will.
• Scission means different laws govern different assets, depending on where they're located. Movable property (bank accounts, securities, most business interests) is often governed by the deceased's domicile. Immovable property (real estate) is very often governed by the law of the country where it physically sits, regardless of the deceased's domicile or nationality.

This is where estates spread over three countries get genuinely messy. A US-domiciled person with a French holiday home can generally choose US law to govern their worldwide estate, using Brussels IV's nationality-election provision.

But the election has to be made explicitly in the will, in the right form. Some French notaries and courts have still required the reserved heirs' portion to be respected in practice for the French property, especially where the heirs live in France and contest the election.

Between what the regulation technically allows and what survives a challenge in a local court, families lose money and years.

Where Are the Grey Areas?

The rules on paper and the rules in a courtroom don't always match. Two points here are genuinely uncertain, and one depends on how a local court treats your arrangements.

Grey doesn't mean off-limits. Families do proceed with these arrangements once they understand the risk. Just don't treat any of them as safe because they look tidy on paper.

The Three Places Wills Most Often Collide

There are three common traps. Each one catches people who thought they'd done everything right.

1. Several wills that overlap. Families are often told to have a separate will in each country where they hold significant assets. That's a reasonable idea, since a local will speeds up local probate (the court process for validating a will and handing over assets).

The trouble starts when each will is drafted on its own, without a revocation clause scoped to that country only. A later will saying "I revoke all previous wills" can accidentally cancel an earlier will made for a different country's assets. Those assets then pass under intestacy rules, the default rules for people who die without a valid will, instead of the plan the family thought was in place.

2. Marriage rules that decide what's in the estate. Civil-law countries often apply a default matrimonial property regime (community of property, or a variant). It decides what's actually in the estate before succession law distributes it.

Say a couple married in a community-property country and later moved to a common-law country. At death, they may find that half the "estate" the will tries to distribute never belonged solely to the deceased. The surviving spouse already owned it outright under the marital regime.

3. Trusts and foundations pulled back into the estate. Some civil-law countries with strong forced heirship rules apply "clawback" doctrines, meaning they count lifetime gifts, and in some cases trust-settled assets, as part of the estate. They do this when checking whether reserved heirs got their mandated share, even when the trust itself is validly recognised.

Families often get an unpleasant surprise here. They assumed a trust set up decades earlier had permanently removed those assets from succession exposure.

What Actually Reduces the Conflict

You can't remove the risk entirely, but four things shrink it. Each one answers one of the traps above.

• Make an explicit, correctly executed choice of law. Where the relevant regulation allows it (Brussels IV is the clearest example), name the law of your nationality to govern the worldwide estate. Do it in the specific form each country's law requires, not just stated informally.
• Write jurisdiction-scoped wills with narrow revocation clauses. Each will should say precisely which assets, or which country's assets, it covers. It should revoke only earlier wills covering the same scope, not "all previous wills" as a blanket phrase.
• Review your marital property regime before you die. Check the one actually in effect, not the one you assume applies based on where you live now. It can change automatically when a couple moves, depending on the countries involved.
• Get local lawyers in each country to work together. Don't rely on one adviser drafting documents for countries they don't practise in. Forced heirship, clawback rules and situs classification vary enough between neighbouring countries that general international experience isn't a substitute. You want lawyers who know each country's rules reviewing the final documents.

What Does Getting It Wrong Cost?

The dispute that actually happens is rarely about the will being invalid. More often a validly signed will in Country A runs into a forced heirship claim in Country B, brought by an heir who has standing there.

The result is years of litigation that eats a meaningful share of the very assets in dispute, while your actual wishes sit in a document that a court somewhere has decided doesn't fully apply.

If your family has meaningful assets in more than one legal tradition, the question to ask is whether the countries that can actually reach those assets at death have been checked against each other. Having a will doesn't settle that.

And that check needs redoing any time your residence, domicile, marital status or a major asset's location changes.