French inheritance laws and Deprivation of Capital in Universal Credit

Curioussquid

I was wondering if anyone can help. My Father in Law was an English National but French resident, and he died with property in France. He had written an 'English style' will, electing for English Law to govern his will, as per the European Succession Regulation (650/2012) 2015, and leaving everything to his wife. However, the Notaire has said that because Article 913 of the Civil Code was updated in 2021, there is an option for children of French residents to use the property to get a compensatory benefit equivalent to the value that would be achieved through forced heirship. In my husband's case, it means he could get 1/4 of the house sale. 

My husband's mother is frail and needs to move back to England so that we can support her. She needs the full value of the property sale to be able to buy a small flat here in England, near her family. The Notaire has written to her, saying 'In most cases, the children concerned confirm that they do not wish to exercise this right, which then allows the situation to be definitively settled.' She would like us to do this.

We receive Universal Credit. The Decision Makers' Guide says:
"H1175 Pending the completion of the administration, a beneficiary without a specific bequest (a residuary beneficiary) has valuable rights in the form of a chose in action (see H1036). This can be valued (H1643) and should be taken into account as actual capital. If the residuary beneficiary gives away his interest by a deed of variation before administration is complete then this may amount to deprivation and the DM should consider H1815 et seq."

But also:

H1825 DMs have to show the claimant's or partner's purpose was to get UC or more benefit if they decide claimants or partners have deprived themselves of capital1. Getting UC or more UC may not be the claimant's or partner's predominant purpose but it must be a significant one2. So when claimants give away all their capital to a relative just before claiming UC their 1. main, or predominant, purpose may be to benefit the relative and 2. intention, or significant purpose, may be to reduce their capital so they can get UC or more UC.

H1826 DMs have to decide if the claimant's or partner's significant purpose was to get UC or more UC. The DM has to make such a decision each time claimants or partners deprive themselves of capital. So if a claimant has spent their capital on several things the DM has to decide the claimant's purpose for each act of deprivation.

And:

H1842 Claimants or partners have not deprived themselves of capital for the purpose of getting UC or more UC if they 1. say exactly what they are going to do with their capital and 2. are told by an officer of DWP it will not affect the amount of UC they can get and 3. do what they said they were going to do with their capital.

To this end, we have informed UC of the fact that this situation is happening, and asking whether they would view us allowing the will to proceed as intended by my Father in Law would be seen as Deliberate Deprivation of Capital. Our sole intention is that my Mother in Law gets the support she needs from family here. 

Universal Credit have said that unless we make a decision, they will not tell us if our decision was the right one. In other words, we have to decide what to do, then they will tell us if we got it wrong.

I can't see this as being fair? Especially in light of H1842, which indicates that we should be able to discuss it with them in advance and get their advice?

I'm particularly uncomfortable with the idea that a DM can make a subjective judgement about our motivations.

Grumpy_chap

Curioussquid said:

I was wondering if anyone can help. My Father in Law was an English National but French resident, and he died with property in France. He had written an 'English style' will, electing for English Law to govern his will, as per the European Succession Regulation (650/2012) 2015, and leaving everything to his wife. However, the Notaire has said that because Article 913 of the Civil Code was updated in 2021, there is an option for children of French residents to use the property to get a compensatory benefit equivalent to the value that would be achieved through forced heirship. In my husband's case, it means he could get 1/4 of the house sale. 

My husband's mother is frail and needs to move back to England so that we can support her. She needs the full value of the property sale to be able to buy a small flat here in England, near her family. The Notaire has written to her, saying 'In most cases, the children concerned confirm that they do not wish to exercise this right, which then allows the situation to be definitively settled.' She would like us to do this.

We receive Universal Credit. The Decision Makers' Guide says:
"H1175 Pending the completion of the administration, a beneficiary without a specific bequest (a residuary beneficiary) has valuable rights in the form of a chose in action (see H1036). This can be valued (H1643) and should be taken into account as actual capital. If the residuary beneficiary gives away his interest by a deed of variation before administration is complete then this may amount to deprivation and the DM should consider H1815 et seq."

But also:

H1825 DMs have to show the claimant's or partner's purpose was to get UC or more benefit if they decide claimants or partners have deprived themselves of capital1. Getting UC or more UC may not be the claimant's or partner's predominant purpose but it must be a significant one2. So when claimants give away all their capital to a relative just before claiming UC their 1. main, or predominant, purpose may be to benefit the relative and 2. intention, or significant purpose, may be to reduce their capital so they can get UC or more UC.

H1826 DMs have to decide if the claimant's or partner's significant purpose was to get UC or more UC. The DM has to make such a decision each time claimants or partners deprive themselves of capital. So if a claimant has spent their capital on several things the DM has to decide the claimant's purpose for each act of deprivation.

And:

H1842 Claimants or partners have not deprived themselves of capital for the purpose of getting UC or more UC if they 1. say exactly what they are going to do with their capital and 2. are told by an officer of DWP it will not affect the amount of UC they can get and 3. do what they said they were going to do with their capital.

To this end, we have informed UC of the fact that this situation is happening, and asking whether they would view us allowing the will to proceed as intended by my Father in Law would be seen as Deliberate Deprivation of Capital. Our sole intention is that my Mother in Law gets the support she needs from family here. 

Universal Credit have said that unless we make a decision, they will not tell us if our decision was the right one. In other words, we have to decide what to do, then they will tell us if we got it wrong.

I can't see this as being fair? Especially in light of H1842, which indicates that we should be able to discuss it with them in advance and get their advice?

I'm particularly uncomfortable with the idea that a DM can make a subjective judgement about our motivations.

UC DMs will never comment on a proposed action but only make decisions based upon actual actions.  DMs are not there to be benefits advisors, or to comment on how an individual might maximise their access to means tested benefits.

The FiLs Will sounds very simple - English Law and all to MiL.
OPs Husband is not a Beneficiary in the Will.
The comments about a DoV are not applicable.

It probably does not help that the issue of "forced heirship" has been mentioned to a DM.  Had nothing been said, a DM would very likely have taken the Will as the simple document it is.

Curioussquid

Are we not supposed to be transparent and honest in our dealings with benefits claims? I'm not trying to maximise our access to means tested benefits. I'm trying to honour my Father in law's expressed intentions in his will, give my Mother in law the support she needs, but also to make sure that I'm not breaking any rules with the DWP, because integrity matters to me.

Curioussquid

Grumpy_chap said:

It probably does not help that the issue of "forced heirship" has been mentioned to a DM.  Had nothing been said, a DM would very likely have taken the Will as the simple document it is.

The will is a simple document, but the law is not. The issue is that we have a choice to make and I want to make sure that making a choice doesn't cause problems in either direction.

Spoonie_Turtle

Curioussquid said:

Are we not supposed to be transparent and honest in our dealings with benefits claims? I'm not trying to maximise our access to means tested benefits. I'm trying to honour my Father in law's expressed intentions in his will, give my Mother in law the support she needs, but also to make sure that I'm not breaking any rules with the DWP, because integrity matters to me.

Indeed.  It's unfortunate the guidance mentions "told by an officer of DWP it will not affect the amount of UC they can get" because UC *simply will not* make a decision on something that hasn't happened yet.  They will only make decisions based on something that HAS happened, and that applies across the board.

Curioussquid

Spoonie_Turtle said:

Curioussquid said:

Are we not supposed to be transparent and honest in our dealings with benefits claims? I'm not trying to maximise our access to means tested benefits. I'm trying to honour my Father in law's expressed intentions in his will, give my Mother in law the support she needs, but also to make sure that I'm not breaking any rules with the DWP, because integrity matters to me.

Indeed.  It's unfortunate the guidance mentions "told by an officer of DWP it will not affect the amount of UC they can get" because UC *simply will not* make a decision on something that hasn't happened yet.  They will only make decisions based on something that HAS happened, and that applies across the board.

I'm thinking that this is the issue. It just seems a very unfair system. We have done our very best to understand the rules, but the rules are subjective. So we have sought clarification of them, and then we're told 'You make a decision and we'll punish you if you got it wrong, but we won't tell you what's right until after you can't undo it.'

If we make the decision to pursue the French forced heirship rights, then my Mother in law won't be able to afford to live near us and get the support she needs, we'll have taken money that was intended to be hers, and the DWP might not have decided that it was a problem in any event. If we make a decision to allow the will to proceed as written, then the DWP might decide to treat us as if we had taken the money and our children will be plunged into poverty. How is that a transparent system?

Curioussquid

I have had two comments on my journal to the effect of 'if you don't get any money then you don't need to tell us about it so it won't affect your claim' but as they are messages from caseworkers in the contact centres, I'm not sure they count as 'DWP officers'. Given that I know their answers are wrong, I'm not sure I can in all good conscience rely on them as having been told that it's ok to refuse to pursue the inheritance.

Thanks for all the comments. I guess we won't get any clear answers because it will be the view of a DM that matters after the fact.

peteuk

Curioussquid said:.

I'm thinking that this is the issue. It just seems a very unfair system. We have done our very best to understand the rules, but the rules are subjective. So we have sought clarification of them, and then we're told 'You make a decision and we'll punish you if you got it wrong, but we won't tell you what's right until after you can't undo it.'

If we make the decision to pursue the French forced heirship rights, then my Mother in law won't be able to afford to live near us and get the support she needs, we'll have taken money that was intended to be hers, and the DWP might not have decided that it was a problem in any event. If we make a decision to allow the will to proceed as written, then the DWP might decide to treat us as if we had taken the money and our children will be plunged into poverty. How is that a transparent system?

I hate to be the one who puts a spanner in the works…

The real issue here is the two laws dont walk hand in hand, the French law making you take 1/4 of the estate, which then clashes with the allowance of capital under the UK UC laws. 

Had this been in the UK then the house would pass to the spouse, you wouldnt get the payment and then UC would not be affected. 

I am summising that part ownership of the MIL house in the UK, is not possible?

Curioussquid

"I am summising that part ownership of the MIL house in the UK, is not possible?"

I doubt MIL would like that. But also, we would still be deemed to have capital by the DWP.

Spoonie_Turtle

If MIL is of state pension age, your husband's share of the capital in a property in which she lived would be disregarded.

However rereading your first post it sounds like the French law is an option rather than something that has to be done or would be done by default?  Deprivation of capital is when someone takes action to deprive themselves of capital that is or would rightfully be theirs - if the will would legally be executed as written, without interference from the children, I'm not sure that would be a problem.  Obviously I am not a lawyer and am just going by what you have written, but just looking at the principles of DoC.

What would happen if your husband did/said nothing?

NedS

Spoonie_Turtle said:

However rereading your first post it sounds like the French law is an option rather than something that has to be done or would be done by default?  Deprivation of capital is when someone takes action to deprive themselves of capital that is or would rightfully be theirs - if the will would legally be executed as written, without interference from the children, I'm not sure that would be a problem.  Obviously I am not a lawyer and am just going by what you have written, but just looking at the principles of DoC.

What about choosing inaction / choosing not to take action to claim what would rightfully be theirs? 

If you had a winning lotto ticket and chose not to claim the prize, would you have deliberately deprived yourself of what would otherwise rightfully have been yours?

I accept this is different (the opposite) of a deed of variation scenario under UK law where a beneficiary chooses to give away, but the question here is if choosing not to claim any less an act of deprivation?