Finally the European Regulation No 650/2012 has been approved concerning succession and the creation of an European Certificate of Succession.
Just like we announced in our previous articles, this new regulation was passed and ratified by Spain, and it will apply, as per its article No. 20, even when it affects persons from countries that have not ratified this regulation, such as the UK, Ireland and Denmark.
It is our believe that the new regulation may result in the near future in a considerable increase of Court claims directed to contest / challenge or dispute a Will in Spain as we shall see later on in this article.
We consider, as previously stated, that the most remarkable fact of this new regulation NOW IN FORCE, is the fact that the applicable law to the Succession / Inheritance will be the law of the country where the deceased had his the habitual residence. Also as per the article 22 the testator /testatrix can opt at the time of making the Will or at time of Death, for his/her national Law.
As we have said many times before this is very important, as for example, if you live permanently in Spain and decide to leave in your Will all your assets to your wife; according to the new regulation now in force, if you do not opt for your national law in the Will and you pass away living in Spain, it could be understood that the applicable law to the Inheritance should be the Spanish Succession Law. Therefore your children as forced heirs (according to Spanish Law) would inherit at least 2/3 of your Estate. This opens a new door to contesting / challenging or disputing the Wills of British citizens living in Spain, as well as to many possible problems that could arise at the time of formalizing the succession ( signing the inheritance deed), if the Will does not respect the legitimate and forced heir’s rights.
This same situation already existed even before the approval of the new Regulation as the Supreme Court of Spain in its Order No. 849/2002 pointed out in a case of an English national domiciled and with all assets in Spain, accepting the “renvoi” from English to Spain Law, that the Spanish Law was the applicable to his inheritance, and therefore, accepted the challenge / annulment of his Will, declaring the deceased’s children forced heirs of his Inheritance as per the Spanish Inheritance Law..
It is important to know that the Regulation shall apply to the succession of persons who die on or after 17 August 2015 but it is also interesting to note that if the deceased has chosen the applicable law for his Succession prior to this date (17 August 2015) that choice will be valid if it meets the conditions of the regulation or if it is valid in application of the rules of private international law which were in force, at the time when the choice was made.
Therefore, if you, for example, are an English national who would like to leave your assets to your wife then please have your Will revised by an expert qualified lawyer who can advice you how to protect your wish and Succession whether you pass away before or after 17 August 2015.
The Supreme Court of Spain on its Order No. 849/2002 made these points clear but now with the recent approval of Regulation 650/2012 it is even more clear and definite.
If you or someone you know needs advice in this matter then please do not hesitate to contact us, we are experts in this field of law.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.