Signing and Witnessing French legal documents during lockdown

Signing and Witnessing French legal documents during lockdown

Witnessing legal documents during the Coronavirus (COVID-19) lockdown can present a challenge particularly when dealing with matters abroad. John Kitching from French Law Consultancy is a highly regarded expert in French law and he has written an article explaining how French legal documents can be signed and witnessed during lockdown. For guidance on how Spall Clark Solicitors are dealing with meetings during lockdown, please see our Coronavirus statement. For information about the signing and witnessing requirements for English wills, please see our will signing article.

Article by John Kitching at French Law Consultancy

Wills

France allows handwritten Wills, testaments olographes, which are the most popular form of Will in France.  The formal validity of these Wills is set out in French law, under article 970 of the Code Civil as set out below, requires that the Will is entirely handwritten by the testator, and dated and signed by them.  There is no requirement for witnesses, and it must not be typed.

Code Civil Article 970 – French Will validity of handwritten olographe Wills:

     “Le testament olographe ne sera point valable s’il n’est écrit en entier,

  daté et signé de la main du testateur : il n’est assujetti à aucune autre forme”

French Law Consultancy can assist you with carefully drafted French Wills. If you live in France, or own a property in France, or are a French national then you can validly use a French olographe Will, for all or part of your estate. 

Signing French Succession Documents, French Property Sale and Purchase Documents

The Paris Notaires Chamber has issued guidance on signing French Succession documents and French property documents in lockdown, la confinement, which is summarised below:

The French legislature by a decree of 3 April 2020 allows Notaires to sign documents remotely during lockdown.  Notaires have approved secure video-conferencing software from a company called Lifesize, in order to check the identity of the client, and run through documents with the client on a one to one basis, checking their legal capacity and checking that they understand the key elements of the documents. 

The Client then signs an approval by e-signature whilst on video conference, and this allows the Notaire to sign with the same effect as if it were in handwriting, under article 1167 of the Code Civil, and decree 2017-1416 of 28 September 2017.  The Notaire annexes this to the deed, and adds his own approved Notarial e-signature confirmation.  The deed then has the same effect as any other authentic deed.

This is used for signing French Probate Succession documents and French Property sale and purchase deeds.

Powers of Attorney (Procurations)

Powers of attorney are useful to allow a Notaire or Clerk to sign on behalf of a person who cannot attend the Notaire’s office in France to sign. 

Documents often signed by Procuration includes French probate documents are being signed, the typical succession documents include a déclaration de succession, Acte de Notoriété, and Attestation Immobilière, and also includes sale and purchase deeds.

Existing powers of attorney

Procurations that have already been witnessed by a Notary Public can be posted to the Notaire, or if posting is not possible, then they can be scanned to the Notaire with a signed copy of the identity document.

Alternatively video conferencing can be used to sign powers of attorney remotely, although it does require the client to have a certain level of computer literacy.

Notaires who are familiar with John Kitching’s bilingual cross border expertise have agreed that UK Clients needing to sign French procurations (powers of attorney) can sign by video conference with the Notaire if John Kitching is also on the video call to ensure that  the client understands what is being signed, its nature and effect.  Whilst it is not possible for UK clients to sign in front of a UK Notary Public, the French have rapidly approved the above mechanism for powers of attorney, which can allow UK client, with expert legal assistance, still to sign, where the client is computer literate.

Apostille Legalisation

During lockdown, it is not generally possible to obtain an Apostille certificate of legalisation, and many Notaires are not demanding this.  Where Apostille legalisation is required it can be done by emailing the FCO a scan of the Notary’s signature or seal, and the FCO can then check and provisionally confirm whether or not the details match with the record, and whether the Notary is registered with the FCO for Apostille.  This avoids the usual need to physically affix the paper Apostille certificate of legalisation.

If a power of attorney needs signing, for example to accept an estate, or to sell a Property in an estate, then it can be done in France.

Whilst it is not possible to physically meet a Notaire to sign witness and certify to French Powers of Attorney, they can be signed electronically using the approved video conferencing package Lifestyle.  60% of Notaires have this software, and the other 40% are encouraged to ask to use the software from their colleagues.

The problem remains however that if a client is not confident with computers and cannot get assistance due to isolation.  It is at least a mechanism which can assist and works well.

Documents such as Attestation Immobilières (Title transfer deeds), and Declarations de Succession (Inheritance tax forms).

Contact us for a free initial discussion

Spall Clark Solicitors and French Law Consultancy work together to provide integrated advice to individuals and families with assets and family members in France and England.