In today’s article we would like to comment on the recent resolution of the General Directorate of Registries and Notaries in Spain, on 15th June 2016, of an appeal against the decision of the Land Property Registrar of Orihuela (Alicante).
The case concerned the inheritance of a British person, permanently resident in Spain at the date of death, who passed away after the entry into force of Regulation 650/2012, i.e. after the 17th of August 2015. Their Spanish Will was signed in 2003 before a public Spanish notary leaving all his assets and properties to his wife, which is very common in the Anglo-Saxon legal tradition. In that Will, the testator had not chosen which country’s law to be the one to govern the succession.
European Regulation 650/2012 is applicable in Spain to all inheritances, regardless of the nationality of the deceased.
The Land registrar apparently understood that since the testator had not expressly chosen which national law to govern the succession ( professio juris ) then Spanish law, as the country of the deceased’s habitual residence, should be applied. Thus, the wife could not inherit everything, and the children of the deceased were entitled to their share of the inheritance (forced heirship) as indicated in the Spanish Civil Code. But his conclusion was wrong!
The Will was granted prior to August 17, 2015, and following the application of Article 83 of Regulation 650/2012, where its point 4 states:
- If a Will disposition is granted before 17th of August 2015 in accordance with the law which the deceased could have chosen in accordance with this Regulation, it shall be deemed that the law has been chosen as the law applicable to the succession.
Thus, it should be understood that although not expressly said on the Will, the testator at the time of making his will wanted it in accordance with his own national law, and therefore it should be understood that he/she opted for such, meaning the English law should govern the inheritance, meaning it was completely possible for the spouse to inherit the whole estate.
If you have questions about any inheritance, Will, contact us and we’ll help.
The information provided in this article is not intended to be legal advice, but merely conveys information related to legal issues.
Carlos Baos (Lawyer)
Spanish Law firm solicitor attorney barrister.
Alicante, Denia, Costa Blanca Marina Alta
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