IN this article, we will review a consultation carried out by a client in relation to Contest a Will in Spain. In this case, it was a foreign Will.
The deceased was the father of the client. He signed a Will out of Spain in a third country (different from the country of the nationality and residency). At the time of his death (2022), he lived and was domiciled in Spain. He was a *British national. On the Will he asked the Law of the third country to apply to the succession and left everything to his second wife. The questions were about the possibility of contesting the foreign Will in Spain.
Essential law inrelation to the Inheritance in Spain
The main legal instrument to be considered in Spain, is the European Regulation (EU) 650/2012 relative to international inheritances. This will govern any inheritance related to any death that takes place after 17th August 2015.
As per the mentioned European Regulation, in case of inheritance dispute the Spanish courts are competent. Because the deceased had his habitual residence in Spain at the time of death.
Applicable law to the inheritance
As per the Regulation ER 650/2012 the applicable law to the inheritance is:
1. The law of the habitual residence at time of death
As per its article 21, if the deceased has his habitual residency in Spain, then, Spanish Law, must govern the inheritance. This is relevant as the Spanish law recognised some forced rights for the children.
As per the Spanish Civil Code, we can say that the estate could be divided in 3 1/3:
1. 1/3 free disposition; could be left to anybody.
2. 1/3 of the estate is called DE MEJORA, or to improvement of the forced heirs. This 1/3 must go to the descendants, but in the proportion that the testator wants. The life interest of this 1/3 is for the widow.
3. 1/3 of forced rights (strict legitimate). This third must be divided between the children in equal shares.
So, the descendants have a right of 2/3 of the estate.
2. Choice of Law on the Will
On the European Regulation 650/12, it is foreseen the possibility that the law of the residence at time of death is not the one governing the succession. This will happen when the testator chooses his national law to govern it, but this should be expressly chosen. As per its article 22.
As the deceased did not choose his national law (**British Law) on the foreign Will, as the one to govern his succession, it could be understood that the Spanish Law (law of the residence at time of death) must govern succession.
Firstly, the Spanish courts are competent to deal with the court case, in the event of contesting a Will in Spain. Even if it is a foreign Will. When the deceased had his main residency in Spain.
Secondly, in relation to the applicable law, as per the European Regulation:
– It could be understood that Spanish Law should apply (last habitual residency at time of death)
– or national law of the deceased, if the testator opted for it.
– But, it is difficult to be considered that the third country law applies, if it is different than the country of the nationality or last residency or domicile.
Therefore, even if the foreign Will is valid, it could be understood that the Spanish Law must apply to the succession. So the children, could contest the Will in Spain. Consequently, it is possible to ask the Spanish court to declare that the children have forced rights as per the Spanish Law. For about 2/3 of the estate. The rest will be for the widow as per the ‘foreign Will’.
If you have any query about challenging or contesting a Will in Spain. Or about inheritance, contact us.
The information provided in this article is not intended as legal advice, but simply conveys information related to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
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