Personal Law

To some he was the Elvis Presley of France. And like Elvis’ estate recently, Johnny Hallyday’s estate is reported to be the subject of dispute and challenge. The legal issues appear to revolve around domicile and French forced heirship. Forced heirship has an equivalent in Scotland called legal rights.

What’s happening with Hallyday’s estate?

Hallyday died in December. He had a home in California. He was tax resident in California. His last will was made in California. So, on the one hand Hallyday was closely connected to California and it should govern succession to his estate. Right?

But Hallyday was French. Jean-Philippe Léo Smet (aka Johnny Hallyday) was born in France and died in France. As well as California, at one point he lived in Switzerland. However, some reporting sources say he wanted to be living in France when he had a Swiss base. He seemed to have close bonds to France and ‘being French’. Perhaps French law should govern?

In many countries (including Scotland), at birth an individual will have a ‘domicile of origin’. In order to change domicile it is necessary to acquire a ‘domicile of choice’. Acquiring a domicile of choice requires positive moves (physical and most definitely psychologically) to ‘cut ties’ with one’s current nation and adopt a new homeland.

This matters in succession law as certain issues (including French forced heirship) are determined by the law of domicile at death. Was it California with its limited protections for disinherited children or France with powerful succession rights for children? [For those very interested in ‘domicile’ we do note that some countries use concepts such as ‘habitual residence’ and that features in current cross-EU succession rules which we have talked about before when introduced and also in the context of Brexit.]

So, where in the world one is domiciled can be critical to which rules govern the inheritance of all or major parts of an estate.

No doubt there will be more twists in the Hallyday case. This is the especially the case as French music and film stars (including Brigitte Bardot in February) set out their personal views on cross-border succession laws!

What does this mean for you in Scotland?

Scotland has similar legal principles on disinheritance as France. These are called ‘legal rights’. In very brief summary, legal rights work as follows:-

  • applicable to the “moveable” estate – i.e. in terms of value, basically everything apart from land and buildings could be affected
  • applicable where the deceased was domiciled in Scotland at date of death
  • on the first death, a right to 1/3 of the moveable estate by a surviving spouse/ civil partner and 1/3 children as a group
  • on the second death, a right to 1/2 of the moveable estate by children as a group

We have looked at Scottish legal rights in more detail on a previous occasion (actually through the prism of other artistes- Take That!).

If one had a legal rights ‘problem’ (e.g. the wish to more easily disinherit a child) finding a country that did not have such rights and acquiring a domicile of choice might be a strategy (maybe that is what Hallyday proactively did?). Putting to one side the difficulties there might be in showing that ties with one country have been severed and new bonds created somewhere else, it might not be all plain-sailing to or all legal milk and honey once in a land where there is apparent freedom to disinherit. In England recently there was a long running case where a child challenged a will on the basis that more of the estate should have gone to them than was provided for in the will. Melita Jackson’s estate ended up in the Supreme Court. If Scotland has legal rights which can be unhelpful in some situations, at least they create greater certainty, the opportunity to plan and reduce the risks of ending up in a long court battle. To some (all?!) the Melita Jackson case might feel all a bit Jardynce v Jardynce and to be avoided. For more on the Melita Jackson estate and what would happen in Scotland, here is a blog on that.

Dispute and contest / planning ahead – avoiding regrets

There will be situations were a challenge to or contesting of a will should be considered. Hallyday’s estate is being played out in the glare of the media, but highlights some important succession law fundamentals. One such fundamental being which country’s laws will govern the estate and how it is then divided on the basis of that country’s rules.

There might be merit and grounds for scrutinising the arrangements that the deceased put in place from which law governs through to issues of capacity and undue influence. The latter topics requiring clear (medical) evidence to support a challenge.

For those seeking to avoid their will and estate planning be challenged, as ever proactively planning ahead to put in place the best possible arrangements is the best course of action. Planning that will include getting the right will, the destination of death benefits confirmed and controlled, the right of ownership and structures as well as your chosen (power of) attorney.

All with a view so that one can say “non, je ne regrette rien”.

This blog was written by Alan Eccles – alan.eccles@brodies.com @BrodiesPersonal

Alan Eccles

Alan Eccles

Partner at Brodies LLP
Alan is a Partner in the private client department, based in Glasgow, covering three main areas: charities, private client and parliamentary matters.
Alan Eccles