Thank you for your query.
In your case the first thing that must be determined is which Law should be applied to the administration of your late father’s estate, either English law (his national law) or Spanish law (being the law of the country where the property is located where he last lived). For practical purposes the difference for you is of vital importance since if the applicable Law is Spanish Inheritance Law then you, as his daughter, would be entitled to inherit a share of his assets as per what is called in Spain the legitimate (la legitima) since children are the legitimate and forced heirs, as set out in the Spanish Civil Code.
If however the applicable Law is English Law, by which in principle everyone is free to dispose of their estate as they wish, you would not be treated in Spain as a forced heir and therefore what your father set out in his Spanish Will should be respected. At this point we must remember that English law enables certain persons, mainly children and spouses, to challenge a Will where the deceased was ‘domiciled’ in England & Wales at date of death and had made insufficient provision for that person
In order to determine which Law should be applied, Article 9.8 of the Spanish Civil Code should first be considered. This article states 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.
So, at first glance Spanish Law states that in this case the Law of England & Wales, being your father’s national law, should be applied.
But as you may know the Law of England & Wales states that:
1.-In relation to moveable asses the law of the country of domicile of the deceased should be applied.
2.-In relation to immoveable property (Land or buildings) it states that the law of the country where the property is located should apply.
Therefore, in accordance with English Law at least in regard to the property that you mentioned, it is understood that the Law to be applied is Spanish Law since this is the country where the villa is located.
At this point we have to clarify that the concept of domicile as per English law is very different from the Spanish concept where it is understood as being the place in which you live or are tax resident. The concept of domicile under English Law is much broader as a person can live in Spain for many years but maintain their domicile in England.
We could therefore reach the conclusion that according to English Law:
1.- Spanish Law would apply for the properties in Spain and also to his other movable assets (bank accounts, investments, etc) if we understand domicile as residency,
2.-English Law applies for properties in England and the movable assets if it is understood that your father kept England as his domicile of origin (as per the English concept of domicile).
In practice Spanish Courts understand that according to the principles of unity and universality of Inheritance, it cannot be accepted that the law of one country applies over only a portion of a deceased’s estate and the law of another country applies over the rest of the estate; it is generally understood that only one law should be applied.
Also, the Spanish Courts have been traditionally very reluctant to accept the application of Spanish Law when English Law, under which there is a total freedom to make a Will, re-sends and appoints Spanish Law ( where testator’s freedom is limited) as the applicable one for the inheritance of real estate assets in Spain.
But the Spanish Supreme Court in its decision No. 849/2002 of September 23 in a case of an English national who died leaving only one property in Spain, decided that the Spanish law was applicable, as that property was the only asset, and the application of the Spanish Law did not violate the principles of unity and universality of Inheritance.
So in reference to your case I understand that it is possible that you may have a claim for 2/3 of your late father’s estate consisting only of the property in Spain. It must be determined if your father had any other assets at the time of his death and his domicile must also be established according to Spanish and English Law, and also should be checked the wording of his Will in order to check if any mention was made to the applicable law to the Will and his inheritance.
Should this be your case, or the case of someone you know, we will be more than pleased to assist you.
*The information provided on this article is not intended to be legal advice, but merely conveys general information related to legal issues.
White & Baos Abogados & English Solicitors
Tel: 966 426 185
(Located at the Glorieta Square end of Marques de Campo)
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