In this week’s article we will analyse several issues of great relevance when contesting a will. On the one hand, the law applicable to the succession. That is to say, the set of rules and laws that govern an inheritance. On the other hand, the territorial jurisdiction when contesting a will. In other words, what is the competent court to contest a will. To study and decide on the matter. We explain this by means of a recent judicial success of our firm in the Provincial Court of Malaga.
Which law is applicable to the succession? Regulation 650/2012.
To summarise, under Regulation 650/2012, the law applicable to a succession shall be:
1.- The law of the habitual residence of the deceased, at the time of death.
2.- The national law of the testator, when he/she expressly opted for it when granting his/her will.
The importance of the law applicable to the succession: the forced heirs.
In many countries such as Spain, France, Italy, Germany, etc., the law reserves a part of the deceased’s assets to certain relatives. For instance, under Spanish law, children are entitled to 2/3 of their parents’ assets. However, in countries such as the UK, there is absolute freedom when making a will. And it is possible for a parent to leave no assets to his or her children.
Given the above, it is easy to understand why it is so important which law applies to an inheritance. And why so many conflicts arise for this reason. In an inheritance where Spanish law applies, 2/3 of the deceased’s assets must inevitably go to the children. However, if the law of England or Wales applies, there will be no obligation to leave anything to the descendants.
Territorial jurisdiction: the competent court to examine the case.
Another separate issue, and one that is sometimes mixed up, is which is the competent court to contest a will. That is, what court can examine the case and issue a judgement on the matter. According to Art. 52.1 4º of the Spanish Civil Procedure Law: “In trials on inheritance issues, the Court of the place where the deceased had his last domicile will be competent, and if he had his last domicile in a foreign country, the Court of the place of his last domicile in Spain, or where the majority of his assets were located, at the choice of the plaintiff”.
The case: jurisdiction and applicable law.
An Italian citizen granted a will in 2015 and chose the law of the UK as the applicable law to his succession (he stated that it was his habitual residence at that time). In 2018 he passed away in Spain. One of the heirs contested the will claiming that his father had his habitual residence, at the time of death, in Spain and not in the UK.
The Spanish court before which the will was contested, before judging the facts of the case, determined that it did not have territorial jurisdiction to contest the will. On the basis of articles 21, 22 and 23 of Regulation 650/2012, the Court ruled that territorial jurisdiction corresponded to the courts of the UK.
Appeal to the Provincial Court.
Our firm, not satisfied with this decision, appealed to the Provincial Court. We understood that the law applicable to the succession was being confused with the territorial jurisdiction to judge the case. Furthermore, the merits of the case were being prejudged, affecting to our client’s right to effective judicial protection. The Court agreed with our appeal and the will is finally going to be contested before a Spanish court. You can check the court’s resolution by visiting our website.
At White Baos Lawyers we are experts in inheritance law, contesting wills and inheritances with an international component. If you have any doubts about this, or other issues related to challenging a will, Regulation 650/2012, etc., please do not hesitate to contact us. We will study your case and offer you expert advice.
The information provided in this article is not intended to be legal advice, it simply conveys information related to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
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