Typically this question of challenging a Spanish will or disputing a Spanish will arises when children discover their deceased parent has not made provision for them and instead leaves everything to a new partner/spouse or some totally unrelated third party.
The Spanish law of compulsory or enforced heirs (herederos forzosos) stipulates that two-thirds of an estate must be left to the deceased's children whereas English Law pretty much says a person has free disposition of assets meaning a deceased may leave his property to whomsoever he pleases.
How it is decided will depend on a number of factors such as:-
- Where deceased was domiciled at date of death
- Location of property
- Nationality & residence of beneficiaries
- Applicable law clause
Applicable Law Clause - UK courts hold that an estate should be handled according to the law of the country that the deceased intended it to be handled. If the will is silent on this point, this is assumed to be the country of domicile. However, this assumption can be rebutted "by any sufficient indication that the testator intended his will to be construed according to the law of another country"
Article 9 of the Spanish Civil Code states that when a foreign individual dies, even if resident in Spain at the time of his death, then the disposal of his assets will be governed by his own national law and if his own national laws permits free disposition then so be it. However English law states that in the case of immovable or real property such as land and houses the disposition should be governed by the law of the country where the property is located.
In a contentious matter then it is for the courts to decide which country's laws should be applied.
Renvoi applies where there is a conflict of laws and where one jurisdiction remits the question of the applicable law to another jurisdiction. If the question is remitted to Spain then it is for the Spanish courts to decide if they accept that renvoi and therefore apply their national law to the deceased. The current trend is for the Spanish courts to only accept the renvoi or remission when there are beneficiaries resident in Spain or beneficiaries who have what is considered to be a legitimate right in accordance with Spain 's national law.
An additional element in these cases is the principle of unity of succession which means that an estate is probated at the place of last domicile of the deceased covering his/her worldwide assets and that country's laws should then apply to the whole estate and not just a part. This means that there is no legal necessity for Spanish authorities to get involved in an estate probated abroad, but in the absence of real property (i.e. house) outside of Spain then Spanish courts are more likely to accept the renvoi to Spain .
In summary when it comes to contesting a Spanish will there are no hard and fast rules and no two cases are alike. The problem can also be compounded by some terms having a different meaning under the laws of both coutries. But where a deceased had been resident in Spain for a number of years and had effectively severed all ties with the United Kingdom and held no UK property at death then there would be a greater chance of a challenge succeeding. Likewise if the challenge was brought by a Spanish national against the estate of his English parent then such a case would also have a reasonable chance of succeeding.
Malaga Law Solicitors is uniquely positioned with solicitors qualified in both Spain and UK to be able to advise fully on both Spanish and English law. Any person feeling they might have a claim on a Spanish estate should contact us immediately so that we can take immediate steps to protect assets.
