Distribution of foreign assets

I wonder if any forum members can assist please. We are acting in the administration of an estate where the deceased made a Will in Spain in 1985. This has been translated and states that he left all of his Spanish assets to 4 named beneficiaries. It also states that he will make a separate Will to deal with his assets outside of Spain.

In 2011, he made a Will in England which states:

“…I hereby revoke all former Wills and testamentary dispositions made by me to the extent that and so far only as they affect my property of every kind in the United Kingdom of Great Britain and Northern Ireland I DECLARE that I am domiciled in England and that the proper law of this my will shall be the law of England and Wales…”

In the English Will, the residuary estate is divided between 17 beneficiaries. They include the 4 named in the Spanish Will, 2 minors, 3 charities and other individuals.

We are concerned that the English Will does not state that it only applies to the deceased’s assets in England and we need to be sure which Will applies to the Spanish assets. The English Will may impliedly revoke the Spanish Will if it disposes of worldwide assets, in which case the charities, minors etc, would also receive a share of the Spanish estate. The Will file offers no clues as to the testator’s intentions, although the family agree that he intended the Spanish Will to apply to the Spanish assets and the English Will to the English assets.

Any thoughts would be much appreciated.

Anna Howat
Chattertons Solicitors

Could I just ask one clarification before going any further: was the deceased testator habitually resident in Spain, and if so did they die on or after 17th August, 2015?

The reason for my asking is that, if so, then there will be the EU Succession regulation to contend with, if not, then then prior PIL will apply. Perhaps best to start by the date and place of habitual residence on death, before getting into the remainder of the interesting issues you raise.

Peter Harris

Hi Anna,

I’m not sure if I may be of much help. As an spanish lawyer with some experience dealing with this type of will I would say:

1.- It’s clear he got the old advice, still kind of valid, of multiple wills to smooth the process.

2.- The spanish law would select the english law as the personal law of the deceased and also his domicile law if he passed out recently, so dates aren’t an issue at first sight. Taxes may be another story, and a major headache as it could be a double taxation (with deductions in any case).

3.- The real intentions of the deceased always take precedence when it comes to spanish law. However, we have english law ruling the whole thing.

4.- I can’t assist with British law, it’s outside of my scope. If I had to make a guess the revoke seems partial to me. He insists to revoke wills dealing with “local estate” so it sort of implies a conscious effort not to revoke the Spanish instrument but to let both wills rule things in parallel.

If he was of the “walking the fine line” ilk I could see a plan for the wills not to meet each other due to tax ramifications et cetera.

Jose Garriga

Jose Garriga Abogados

It would appear to me, purely on a plain reading of the language, that the revocation was specific to any property in the UK and Northern Ireland. This being quite specific, therefore surely the Spanish will stands with respect to Spanish assets and the English will with respect to all other assets as I don’t see that the Spanish will has been revoked.
Cases like this keep it interesting!

Andrew Clements
Grayson Clements Ltd

The facts of this case remind me of the Denney (1999) and Re Adams (1985) cases (pre-succession regulation) which are good authorities on the conlict of English and Spanish inheritance laws.
Charlotte Oliver
Oliver & Partners, Rome

Peter, thank you for your reply.

The deceased testator was habitually resident in England and died before 17 August 2015.

Anna Howat
Chattertons Solicitors

At first glance, it seems clear to me that the drafting in the 2011 Will was designed to avoid the revocation of the 1985 Will, so that the earlier 1985 Will continues to deal with the devolution of the assets in Spain.

Steve Carter
Setfords Solicitors

The purpose of excluding from the revocation any Wills dealing with assets outside the UK can only be that there are other arrangements which are intended to continue to apply. I think you can infer from this an intention that the Will was not intended to cover any non-UK assets, even if there is no explicit declaration. In any event, there can’t be an implied revocation when there is an express non-revocation.
Bruce Hogarth-Jones
Plantagenet Partners LLP