Impossible division of property purchased with a tontine clause

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In a recent Court case, a property had been purchased by two friends: Mr. Logger and Mr. Heads. The completion deed included a clause stating that the first of the co-owners to die would be considered as never having had any right of ownership on the property. As a result, this clause allowed the surviving co-owner to become the sole owner who would be deemed as such since the day of purchase. This clause is known as a tontine clause (or clause d'accroissement).


Over 15 years later, Mr. Heads got married, and as a result, Mr. Logger requested that the property was sold and the price divided equally. Mr. Heads refused and Mr. Logger tried to force the sale in Court.


After Mr. Heads request was rejected by the Court, he appealed and the Court of Appeal of Aix-en-Provence confirmed the first decision: as the parties are bound by a tontine clause, it prevents them from being subject to the normal rules of indivision (which can be likened to the UK tenancy in common) and therefore nobody, not even a judge, can force a sale.


As a result, the parties will only be unbound upon the death of Mr. Heads or Mr. Logger.


This decision is a classic one and is not uncommon amongst British owners, in particular because many notaires use this option as a knee-jerk reaction with foreign buyers.


The tontine is a method of avoiding the effect of the forced heirship rules by enabling a surviving co-owner to “inherit” the property free of the rights of any heir or beneficiary.


In case of dispute (including in case of divorce), this situation can rapidly become an unsolvable problem; at least as long as the co-owners are still alive.


It is always important to check that a tontine clause is adapted to the buyers’ situation (and that the notaire does not include such clause without it being requested by the buyers) and advice should be sought before making such decision.


Finally, if a tontine clause has already been included in the title deed, it is still possible to cancel it provided that all co-owners agree to it.


If you are not sure whether a tontine clause was added on purchase, I would be glad to check this for you free of charge.

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Unless other arrangements have been put in place, I would be reluctant to include a tontine clause when step children are involved. In effect, even if the tontine protects the surviving spouse who receives the entire property, it also disinherits the deceased person’s children.

It therefore prevents these children from forcing the sale or evicting the surviving spouse because they lose all rights in the estate.

In addition, if the surviving spouse wished to transfer a share of the estate to the deceased spouse’s children, a 60% tax would have to be paid by them.

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Very good, Guillaume. Thank you. I have heard of this clause several times, and believe it is often recommended for couples who have had previous marriages and there are therefore step-children.

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Neither do we as everything will go to the kids anyway but it would stop the kids hassling the remaining partner to sell up so they can have their dosh - yes it does happen! :-O

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Well explained Guillaume, I had wondered in the past about the 'tontine' clause and now I know! We don't have one though.

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Our French house was bought en tontine and we are resident in France. We have children, but no step childen.
We recently had a communaute universelle drawn up so we leave everything to each other. The notaire said this would include our house in England, but another notaire, and also an expert on unheritance for British in France said this was not so.
Also the notaire got my year of birth wrong, and although I pointed this out 5 months ago, will not reply. Would this invalidate the CU?
Oh! Just realised this is a very old topic!

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Dear Marilyn,

Many thanks for your email. It is a very old topic indeed and your questions seem to move us away from the tontine clause. The issues mentioned are complex and the notaire’s approach does not appear to be correct.

I would suggest to contact me to schedule a free preliminary meeting or telephone call so that I can better understand your situation and determine if I can help.

All the best,

Guillaume

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Hi,

Thank you for your response.

DIfferent notaires say different things, which is not helpful! I don’t know how to check the laws to find out what is correct. I have no faith now in the one who drew up the Communaute Universelle. We are not rich (a small cheap house in France and one in England and modest pensions) and it seems we have wasted money as we have a document which may not be valid.

We simply want to leave everything to each other, and then equally to our children. I guess we need a French will but maybe an English one too? I believe we can now state we want to go by English inheritance laws.

I don’t know where you are in France but we cannot travel very long distances as my husband has a serious illness and sometimes is not well enough.

regards,

Marilyn Todd


Virus-free. www.avast.com

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Hi,
From your post I take it that you wish to avoid unnecessary expense -so best to not get into a round of searching for the perfect notaire ( who probably doesn’t exist).
The Communauté Universelle should be OK , provided it has a clause of “attribution integrale” included. It might be useful to make simple UK wills for the UK house only, specifically excluding all items covered by your french marriage contract leaving the UK house to each other in the first instance , and to your children in the case where your spouse dies first. You should be able to do this on a standard will form , which, provided you follow exactly the witnessing instructions, will avoid the expense of a solicitor.
If the "communauté does cover the UK house , the UK will would be redundant , and if not , it will get you what you want, as UK real estate always passes under UK law…

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I’d heard that my UK house would be affected by a marital regime here or a will here and even the intestacy laws (and reserved inheritor law) here if I’m resident here. Isn’t that correct then?

I’m divorced so my previous UK will (written while I was still married) is invalid now and I’m assuming anything I own will just get divided equally between my kids but I guess I should check into this really.

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Hi Debra…

Bearing in mind the inheritance horrors that have been closely followed in the tabloids… yes, it makes sense to check into things now… rather than later… :slightly_smiling_face:

Admittedly, you won’t be around to witness any carnage which may ensue if you fail to arrange things … :stuck_out_tongue_winking_eye:… but it beggars belief how some folk have messed-up their estate…just for the want of a little planning…

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I think the main problem of not having a will isn’t so much as who will get it as both country’s laws mean my kids will get it (as long as I don’t remarry) but there could be a delay and costs involved in deciding who deals with it, where.

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Hi,
French law would automatically divide your estate equally between your children , but to make things easier for the notaire you could make a simple will to that effect (in English if you wish) all in your own handwriting with the communewhere it is made, dated ,and signed , giving your childrens’ dates and places of birth and present addresses.
You can do exactly the same for the UK house , but get two unrelated witnesses to sign it, stating that they were present when you signed the will, and giving their full names and addresses, and occupations. You should register the wills with a notaire , who will keep the originals ,enter them on a national register and give you notarised copies -cost; about 20€.

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Would a notaire then deal with the UK property though or would I have to lodge the UK one with a solicitor or my bank in the UK? I guess I could still name my brother over there as executor? Two of my kids are adult now, one in the UK, but I still have a minor child over here so I think I’d still need someone as executor.

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Dear Debra,

This topic seems to deviate away from tontine clauses but I will make an observation nonetheless as there is a lot of confusion out there about the approach to be taken in these matters.

In order to prepare correctly your estate planning, it would first be necessary to correctly determine your family situation, assets and liabilities. With this in hand, the next step is to confirm the applicable law. This point has been greatly modified by an EU Regulation that came into force in 2015. Finally, it is preferable to review and, if necessary, modify any estate planning measures already taken such as Wills. In most case, we advise to have 2 Wills (English and French) rather than one.

Making your own Wills when many cross-border rules apply does not have to be complicated but there are some very relevant issues to solve and one should seek advice when writing his/her own Will. Since 2015, I have seen many probates going extremely badly because while the situation was straightforward, the estate planning had been poorly anticipated. Please also note that many notaires and solicitors (in some cases, I advise them directly rather than the beneficiaries of an estate) are not sure about the approach to be taken and solid estate planning will ensure they know what to do when the time comes.

Your questions about who (solicitor or notaire) will deal with your French/English probate, executors and, possibly, guardianship (with a minor) would be resolved during the process mentioned above.

I hope this helps.

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We have chatted privately…and, yes, your case is complicated.

I just wonder if @Guillaume_Barlet-Bat will be able to help you. … as he does understand both sides… French and English…

cheers

:relaxed::relaxed::relaxed:

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Is he a notaire? If so, I might be able to get the property transfer and a will sorted all at once :slight_smile:

PM sent to explain my situation and see if Guillaume can help.

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