The consultations we receive and the files we deal with, regarding contesting a Will in Spain, are numerous.
Although we deal and have dealt with legally contentious cases which involved the application of only the Spanish Law, a high number of cases are files where there exists an interaction between Spanish law and laws of other countries, such as: Italian Law, German law, French Law, Irish Law, etc. We especially deal with cases where there is a dispute between the application of the English and Welsh Law and Spanish Inheritance Law.
Regarding this legal field, we need to highlight the importance of the recent approval of the REGULATION (EU) No 650/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession.
This new Regulation 650/2012 will mean a complete change on the legal criteria in Spain, to determine which will be the applicable inheritance law to a Spanish succession. Up to now, the general criteria as per the Article 9.8 of the Spanish Civil Code, is that in mortis causa succession, the applicable law is the national law of the deceased at the time of death, irrespective of the nature of the property and the country where they are located.
With the new regulation, the applicable inheritance law would be the law of the country where the deceased had his habitual residence. But it is essential to note that, as per its article 22, the testator /testatrix can opt at the time of making the Will or at time of Death, for his/her national Law.
This has a most important implication for the foreign community living in Spain, as for the expats living in Spain, for unless they opt expressly for the law of their nationality in their Will, making a proper and correct Will, the applicable law to their probate would be Spanish Succession Law. That means that their children or descendents will be considered as forced heirs ( as per the Spanish Probate Rules) and they must inherit at least 2/3 of the Estate.
We foresee that this new Regulation will result in a major increase in court cases contesting and challenging Spanish or Foreign Wills administrating Spanish assets. This is because for many residents in Spain the Spanish Law will apply, and probably they will ignore this fact and their Wills would not respect the limitations and forced relatives rights of the Spanish Inheritance Laws, leaving open to their descendants and other possible forced heirs (sometimes spouse or parents) the possibility to contest them in court.
Both before and after the approval of this Regulation, special mention needs to be made of the interpretation made by the Spanish Supreme Court in its decision / court order No. 849/2002 of September 23. In this case, an English man’s Will was contested and disputed by his children. The court accepted the application of Spanish Law for the inheritance and succession of this English national, accepting the renvoi from the English Law ( the national law of the deceased) to the Spanish law, as we explained in detail in previous articles, resulting in a ruling that 2/3 of the inheritance went to the children, irrespective of what was ordered in the Will.
In the same sense and terms other court orders have been granted by Provincial and Regional Courts through the whole Spain, including the Alicante Provincial Audience.
This is a really common consultation by deceased’s descendents ( normally daughters and sons ) who want to contest their parent’s Will, asking that the Spanish Law apply in order to have the said legal right to inherit; i.e. because the mother or the father left everything to his/her spouse in the Will.
Also it should be remembered that under the Spanish law it is legally possible to not leave anything to the descendants and disinherit them, but only if one of the legal reasons for disinheritance foreseen on the Spanish Civil Code applies to the case.
Please remember that, normally, in order to determine your real possibilities to contest and challenge, or to defend your Will in Spain, it would be crucial to determine and probe: the kind and situation of the deceased’s estate, where the deceased had his habitual residency, how the Will was worded, etc.
If you want to contest a Will, or if someone wants to dispute your testament and you need your will defending, or if you want to know if there are any possible grounds for challenging it , please let us assist you.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
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