Spanish Wills – Which national law applies?

11/09/2008 @ 12:08

At some point, most Ex-pats who have emigrated to Tenerife or Spain with a view to a permanent move will take the important step of making a Spanish Will.

Spanish law, unlike English Law has a peculiarity in that it seeks to apply the law of nationality to certain legal matters personal to the individual. Hence, English law may be applied to matters affecting those of British nationality, notwithstanding the fact that they may have lived in Tenerife for many years.

Many Ex-pats (and probably a fair number of lawyers) find this concept alien and confusing. In light of the large number of Ex-pats establishing in Spain, the rule may even come under challenge or review in the future. However, at the time of writing, the principle continues to apply.

So what does this mean for the British Ex-Pat? Most notably, any matter involving Divorce, Family Law, Wills or Probate is likely to proceed in accordance with the relevant British Law as opposed to Spanish Law.

For example, a British National making a Spanish Will is free to leave their property to whosoever they choose (spouse, children, the postman, the dog etc), whereas Spanish Nationals must leave certain compulsory percentages to their spouse and children, regardless of personal wishes.

A potential pitfall occurs when a British National goes to a Spanish Lawyer, Gestor or other such individual to prepare their Will. In most cases, the local adviser will have had no legal training or experience in English or Scottish Law or matters relating to U.K. tax or trusts. Very often, the local adviser may not appreciate the effect that an existing or subsequent British Will may have on the Spanish version. Important matters may be overlooked that could affect both Wills, or in the worst cases, render one or other void or ineffective.

Tenerife Solicitors do not just produce Wills for clients. Each client’s individual circumstances are reviewed to ensure that the resultant Will achieves its intended purpose and properly protects the client’s interests. See our Wills sections for more information.