Domicile - which Will?


(michael.micklethwait) #1

Good Morning - I would be grateful for any advice

Client made a will in the UK in 2005 - professional execs and 10 residuary beneficiaries
She retired to Spain in 2006 and never came back to the UK
She made a new will in Spain in Feb 2016 - Lay executors and different residuary beneficiaries - signed and witnessed according to UK law - revocation clause as standard - dealing with worldwide estate
She died in Dec 2016 domiciled in Spain
UK grant required to deal with Spanish assets and UK assets (Spanish lawyer agrees it is more cost effective to obtain UK grant)

As 2016 will was signed in Spain has to comply with Spanish law re wills - it does not - so cannot be proven in the UK

Can the 2016 will still be proven in the UK at Court’s discretion - I do not think so as Rule 30 does not seem to deal with this point - if not then the 2005 will is her last valid will and can be proven in the UK in the usual way (as signed in the UK) and her estate distributed accordingly.

Is the 2005 will her last valid will?

Many thanks,

Michael Micklethwait
Beviss & Beckingsale


(Paul Saunders) #2

s.1 Wills Act 1963 (UK) states:

“A will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed, or in the territory where, at the time of its execution or of the testator’s death, he was domiciled or had his habitual residence, or in a state which, at either of those times, he was a national.”

Whilst I note the deceased is stated to have been domiciled, and resident, in Spain in 2016, it is not clear if they were so domiciled when the will was executed. If they were domiciled and resident in Spain as at the relevant date then, provided the deceased was a national of the UK at the time of execution, the will would be valid under UK Law.

However, if they were resident and domiciled in Spain, Spain will be the deceased’s “country of habitual residence” so that, as I understand the European Succession Law, the applicable succession law will be that of Spain, which includes forced heirship. I am not sure if the deceased’s remaining connection (if any) with the UK would have allowed them to elect for the law of a UK jurisdiction to apply to their estate, and the questioner does not indicate if the will contained any such “election”, in the absence of which the Spanish succession law will apply, regardless of the terms of the will.

Paul Saunders


(andrew.goodman) #3

You do not mention her nationality - I presume not English/Welsh as that would be a ground for accepting English formalities in England.

Andrew Goodman
Osborne Clarke LLP


(michael.micklethwait) #4

She was British and retired to Spain in 2006 – never returned to the UK but did have some UK bank accounts and small shareholding – her children have confirmed that she never intended to return to the UK – Probate registry have confirmed that the 2016 will made and completed in Spain (where she was resident and domiciled at that time) has to comply with Spanish law re wills in order to be proven in the UK courts – it is not –

Are saying that because she had a british passport she could be deemed domicile in the UK – if so would both her UK and Spanish estate pass under the 2016.

Michael Micklethwait
Beviss & Beckingsale


(andrew.goodman) #5

No, it doesn’t affect her domicile. It is rather that her will executed in accordance with English law formalities would be accepted by the English Probate Registry because it was executed in accordance with the law of her nationality - s.1 of the Wills Act quoted by Paul above - to paraphrase “A will shall be treated as properly executed if its execution confirmed to the internal law in force…in a state of which…[s]he was a national.”

Spain should also accept the will as Art 27(1)(b) of the Directive provides that a will “shall be valid as to its form” provided it complies with the law of nationality of the deceased. If the will makes reference to English statutes you can argue that an election was made under Art 22(2) (“demonstrated by the terms of such a disposition”) and then the substance of the will would also be governed by English law (Art 24(2)). If not, the substance would be subject to Spanish law as the habitual residence.

Andrew Goodman
Osborne Clarke LLP


(jgarriga) #6

I agree with Andrew. It is pretty usual to draft a will in Spain governed by the testator national law just to make future steps simpler. Probably taking into account dates and the copernican turn in the applicable law to the matter it still made sense at the moment of the 2016 will.

Formerly the Spanish law would send you to the national law of the deceased, now the possibility of choice is there. Obviously, the testator clearly decided that UK law would govern her will and the Spanish instrument should just be viewed as convenient, all things considered. The possibility of international public order getting in the way is not plausible and things should run smoothly, out of the typical Property Registrator taking time to decide whether the title is sufficient and some other red tape usually related to our beloved jurisdiction.

Without much knowledge of the UK law I would say the Spanish will complies from a formal POV with the Spanish law- Spanish notaries are sound at that- and from a material POV, too. The lack of reference to the new legal system to admit the choice of law is irrelevant and that choice is valid, both with the former set of rules and nowadays.

Jose Garriga