My husband and I have been married 10 years and have lived in Spain for the last 5.

He has one child (from his previous marriage) and I have none. He died last month leaving 2 properties in his name, value around ?500,000. In his Spanish will (prepared by a Spanish solicitor) he stipulated that his entire estate should go to me alone as he has not been particularly close to his daughter and her children (ie his grandchildren) although they have visited on a couple of occasions in the last few years.

A friend has told me that in Spain it is not possible to disinherit your children in this manner and that it might well be the case that the properties should , despite the provisions of the will, be in the name of the daughter. Is this true? Could she suddenly turn up claiming a percentage of the estate?

I would be really really grateful for any help as I am really worried!!!

What one needs to understand is the difference in the two legal systems in this context - that is to say between English Law and Spanish Law. Under Spanish Law there exists the obligation to leave a certain part of ones estate to certain individuals “las leg?timas”. In the majority of Spain this is effectively “Derecho Com?n” although in some regions special historical rights will determine how a Will is drafted and Inheritances are handled “Derechos Forales”.

Under English law an individual is at liberty to leave their assets and interests to whomever they wish. That is to say that there are no restrictions as under Spanish Law (whether national or in its regional form). It is for this very reason that your husband was able to prepare and execute his Spanish Will in the terms that you describe because the Spanish recognise that we enjoy this freedom and allow us to in effect apply the same provisions in respect of our estates in Spain.

Whilst the full details would need to be looked at, from the information that you have provided my initial opinion would be that the estate in Spain would pass under the provisions of the Spanish Will. This may be complicated by the existence of an English Will in certain circumstances although if both were drafted correctly this should not arise. That said an individual is clearly at liberty to seke to challenge the provisions of a Will if they see fit to do so. The merits of any such action will rest on the facts although it is far from easy to contest a Will where no clear evidence of duress can be shown or that the testator / testatrix was not of sound mind.

Finally, your initial posting stands as a salutory note for all because the situation that you describe is not uncommon with one key exception - namely that no Will was in place. I experience this all too often in a professional capacity and it can prove to be both time consuming and expensive with the ultimate result often failing to reflect the actual intentions of the deceased.

In these circumsatnces one reverts to English Law which is effectively governed by the provisions of the Administrations of Estates Act and associated legislation. This sets out the order for distribution of property and in the circumstances that you describe the initial threshold is 125.000 pounds after which your husbands child wouold then have an interest. Beyond this other more distant relatives may also have an interest and this can leave the surviving husabnd or wife in a very difficult position.

I trust that this is of assistance and if you wish to discuss this further please feel free to contact me.

Glyn D Gerard Mor?n
Partner
CB Legal & Fiscal
http://www.legalandfiscal.com
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Hi,
I wonder if Glyn the Lawyer (or anyone else) can clear up something for me regarding wills in Spain.

My husband and I have have been living here legally and with residency for several years and last year we bought property. After having read on a lot of websites, including this one, the importance of having a will in Spain (we have one for the UK assets prepared by a UK solicitor) we went to the notary to ask for information. He told me that in the event of death all assets in Spain would revert back to the law of the country of origin of the person who has died, i.e. the will from the UK would apply and NOT Spanish law. He went so far as to say he would not prepare a Spanish will for us.
Is this correct and does anyone have any more information on the subject. And if the notary won’t prepare the will (there’s only one here) where do we go?

Thanks

I think the advice he has given you is correct according to other sources that I have read. I think the key point about a Spanish will it is important to have if you have no other will or UK assets. I think the governments have agreed this compromise that the persons home nations law will prevail in the event of a conflict.

sallok - 26 September 2008 09:51 PM

Hi,
I wonder if Glyn the Lawyer (or anyone else) can clear up something for me regarding wills in Spain.

My husband and I have have been living here legally and with residency for several years and last year we bought property. After having read on a lot of websites, including this one, the importance of having a will in Spain (we have one for the UK assets prepared by a UK solicitor) we went to the notary to ask for information. He told me that in the event of death all assets in Spain would revert back to the law of the country of origin of the person who has died, i.e. the will from the UK would apply and NOT Spanish law. He went so far as to say he would not prepare a Spanish will for us.
Is this correct and does anyone have any more information on the subject. And if the notary won’t prepare the will (there’s only one here) where do we go?

Thanks

The information you got is correct: Spanish law only apply to Spanish citizens. I am Italian, and while I was still married I had the same problem. The notary public told me (and I checked it in Italy and found out he was right) that the Spanish will would have to be in compliance with the Italian laws and regulations ... which obviously to the notary public didn’t know. I solved the problem making my will in Italy, specifying that it included “all current and future assets, either in Italy or abroad”.

The position described is true in so far as the law of the country of origin will apply in the majority of cases. However, by way of an example should an English national die intestate with no Will in place in either England or Spain and be domiciled in Spain a Statement of Law (effectively what we would understand as an Affidavit) must be sent to the Probate Department of the Principal Registry in England stating who the beneficiaries of the Estate would be under Spanish Law. This takes place as part of the application for Grant of Representation in England which would then be used in Spain to administer the Estate. 

Indeed, in view of this I would question why a Notary should go so far as to refuse to prepare and execute a Spanish Will with you. The very reason why this should be done is to avoid the problems which I have described previously in postings and above. In addition under English Law where an individual dies intestate the division of an Estate is regulated by law and individuals who may not necessarily have been intended beneficiaries can find themselves with an interest in the estate.

English nationals are entitled to prepare their Will as they wish and for this reason this should be expressly stated in Spain by executing a Spanish Will.

More generally, you are free to sign a Spanish Will with the Notary of your choice and for this reason you should not feel tied to your local Notary. Furthermore, I can happily send yourself or other members of the forum / interested parties further information on this subject and Will questionnaires if this would be of assistance. As such please free to send me a PM or e-mail. Subject to your location I would also be happy to provide a quotation for preparing and executing two Spanish Wills.

Glyn D Gerard Mor?n
PartnerCB Legal & Fiscal
http://www.legalandfiscal.com
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Thanks for all the advice guys.