"VAGARIES OF A SPANISH WILL". Article published in Canarian Weekly newspaper in February 2015.

The editor has received an email with a situation that involves many English people granted Spanish Wills.

I agree with Roscoe (Editor) that it could be interesting to include the matter in this column, so I am reproducing the email and give my opinion afterwards.

Dear Editor.

A number of years ago, my husband and I (and most of our friends in Tenerife) made Spanish Wills, following advice given in your paper and from our accountant. We believed this would make things easier for the survivor when one of us died. I heard that: “A Spanish will has the advantage that it can be executed almost immediately, whereas a UK one will, no doubt, exceed the deadline. The reason is that Grant of Probate must be followed in your home country, which takes a long time and is fairly expensive”. I also heard that if you have a Spanish Will, it will not be necessary for your beneficiaries to obtain a Grant of Probate (which would have to be translated and apostillated). A friend of ours, who recently lost her husband, has been told by a Notaria and a Gestoria that, despite having a valid Spanish Will and original death certificate etc, there is no way she can transfer the property to her sole name and pay the Inheritance tax – unless she obtains British Probate validated with an Apostille. She had to return to England to do this and incurred heavy legal costs. Her experience has worried me – and many of our elderly friends. We would be very grateful if you could confirm if this information is correct.

 It would make it very difficult to complete the legal formalities within the time allowed. No doubt, the answer to this email is a challenge. This is an international private law issue and there are different opinions, all of them valid. In fact, the same situation regarding Spanish Wills vary with time. In other words, the reader says that some time ago, she read an article which, jointly with her accountant’s advice, made her decide to opt for a Spanish Will.

I agree with this advice and also confirm that I consider that to have a Spanish Will is always recommendable. In fact, it is advisable to have a Will (if there is no Spanish Will, at least a Will granted abroad). As she said “a number of years ago”, we have to consider that the legal opinions were not the same as today.

In this particular case there is no “black and white”, meaning that 10 years ago most of the notaries in Spain at the time of granting the “Deed of Inheritance” considered that the Spanish Will could be enough to execute it. However, the situation has changed today and most of them consider that the Grant of Probate is necessary and that the Spanish Will itself is not sufficient. In addition, many notaries, apart from the Probate, request other documents (about those extra documents, I would need another article to discuss it).

Spanish Law says the law governing the Inheritance is the national law of the decedent (English law in this case). Thus, Spanish Law reverts to British law (envoy). This means that an English person can grant a Spanish Will (referred to Spanish assets) according to his/her national law (in this case UK law) following Spanish Law formalities.  This Spanish Will is considered valid unless in breach of UK law. Many notaries request the Grant of Probate to confirm (or give more security) that the Spanish Will does not contradict a UK’s Will or an English Court decision. Anyhow, if the Spanish Will can be freely granted according to the national law of the Grantor, it is completely feasible that he states that the Spanish Will is going to govern only his/her assets in Spain, irrespective of what is said in other Wills signed abroad.

Consequently, any Will granted in England would not affect the Spanish one. Another opinion says that the English Will can revoke the Spanish one previously granted. In the latter case, how can the inheritors or even the Spanish notary know if this really happens? In Spain, there is a Registry subsidiary of Ministry of Justice, where all Wills are registered. Consequently, it is possible to know in Spain which the Last Will granted before Notary was (if any). But if there is no Central Registry in England, it would be not possible to determine if there is an English Will signed.

My opinion (and probably there are many others different also valid) is that the Spanish Will (referred to Spanish assets) granted before Spanish Notary Public could be revoked only by another Spanish Will (see what I explain below regarding re-envoy). Nevertheless, the view of the Notary who grants the Inheritance Deed might be taken into account, and he could require the Probate (as additional English document).

But this is not the end of the matter; we know that Spanish Law reverts to English law, but what happens if the English law “reverts” back to Spanish Law? This situation is called “re-envoy” and is quite usual in international private law. If English law re-envoy to Spanish law, this would mean that no Probate could be granted in England. At this stage, it would be necessary to distinguish between “immovables” (real properties) and “movables” left in inheritance and co-ordinate this with the applicable law to the inheritance. This matter exceeds the purposes of this article and could be treated in future issues.

In summary, to sign a Will or not is not indispensable but advisable. An “ab-intestato” proceeding (Inheritance with no Will) would be very expensive and long. The English Will can be enforced in Spain but a Spanish Will (with or without English one) would facilitate things.

To have a Spanish Will is a question of time and money (among other things, translations and legalisations).

Remember that every case should be studied independently, especially taking into account the payment of inheritance taxes which, depending on the cases, could be reduced.

In my own experience, although similar, I have not seen two identical English inheritances. That is why this article cannot be considered as general advise but just as legal opinion.

Note: after the publication of this article came into vigor (17 August 2015) the European Regulation 650/2012 (which deserves another article). The Regulation is not applicable to the UK, Ireland and Denmark). In addition, I have the opportunity to deal with a British Inheritance of an English lady owner co-owner with her husband of a Spanish property in Tenerife. Her husband died leaving a Spanish Will appointing her as sole inheritor in spite of having three common children (which is completely feasible according his national law). The Spanish notary requested the Probate although the couple had been residing in Tenerife for more than thirty years, which made impossible to get such document (English authority did not issue this due to the fact that they were no residents and had no assets in the UK) saying that according to Spanish law children cannot be excluded from the inheritance. Finally the situation could be sorted without being necessary the Probate (applying the English law in which the “legitima” does not exist) and the Deed of Inheritance could be also recorded at the Land Registry. This confirms the importance of having a Spanish Will.

NOTE: After the puclicity of this article, Regulation 650/2012 came into vigour. In my opinion, it is even more recommendable for a foreigner resident in Span to grant a Spanish Will.

Spanish