CASE LAW: INHERITANCE DISPUTE SPAIN: CONTESTING A SPANISH WILL
I.- THE FACTS OF OUR CLIENT’S CASE
R, a British subject domiciled in Spain, devised Spanish property in his Spanish Will, according to the English law; making no provision for one of his daughters. The testator made a valid Spanish will before the Spanish notary, leaving all his assets, shares and actions located in Spain to one of his daughters and making no provision for the other one. (L). She claimed to be entitled to her legitima portio under Spanish law.
II.- OUR LEGAL OPINION: English law position
First, there are no over-arching international laws of succession. Therefore, it is important in the first place to set out what an English court applying English law (including conflict-of-laws rules) would find. In Addition, the position under English common law is that:
A.- Movables:
The material or essential validity of a will of movables or of any particular gift of movables contained in the will is governed by the law of the testator’s domicile at the time of his death (Dicey & Morris, 15th ed Vol.2 (“D&M”) para 27R-044, R.154 (this is similar to para 27R-010, R.149 for intestate estates). However, the English law position,- (since England is not party to the Regulation),- is that if the Deceased died domiciled in England. English domestic law applies to the material or essential validity of any gift of movables (wherever situated) in his will. The question of domicile is not easy to determine (it is different from habitual residence), and if the Deceased died domiciled in Spain, the English court would apply the Spanish conflict-of-law rules, as indicated above.
B.- Immovables:
The material or essential validity of a will of immovables or of any particular gift of immovables contained in the will is governed by the law of the country where the immovables are situated (lex situs) (D&M para 27R-054, R.155 (this is similar to para 27R-017, R.150 for intestate estates))—in this case, Spain. This means not necessarily the domestic law of Spain, but any law that the Spanish courts would apply in the particular case, i.e., the conflict-of-law rules of Spain (D&M para 23-064).
If the EU Succession Regulation 2015 (“the Regulation”) applies to Spain and the conflict-of-law rules in the Regulation would be applied by the Spanish courts, the English court would also apply the Regulation (being the law of the lex situs) in determining issues as to the material or essential validity of any gift of Spanish immovables in the Deceased’s will. The relevant domestic law, therefore, would not necessarily be Spanish law but would be determined in accordance with arts. 21 and 22 of the Regulation—the starting point would be the law of the Deceased’s habitual residence, but it was open to him to choose English law if he was a national of the UK.
III. AN EXAMPLE SIMILAR TO OUR CASE: ROSS, RE (1930)
A. THE FACTS: T, a British subject domiciled in Italy, devised Italian land, making no provision for her son, S. And he claimed to be entitled to one-half thereof as his legitima portio under Italian law. The matter is governed by the lex situs, and that law was shown by evidence to apply English law as T’s national law. The claim of S was therefore rejected.
B. EXTRACT JUDGMENT
(…) for the law of England refers to the question of succession to immovables, to the lex situs (in this case the law of Italy), and the lex Ross situs (the Italian law) refers the case to the law of the nationality, and this might mean the law of the nationality including the rule relating to the lex situs, and once again the “circulus inextricabis” would be constituted. (…). On this basis, the expert evidence is clear that the Italian Courts would decide the succession to the immovable property in the same manner as the English Court would determine if the immovable property in question belonged to an Englishman and was situated in England.
(…) As a result, the plaintiff has failed to substantiate either of his claims in this action and I, therefore, dismiss it with costs.
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Kindest regards
Mr Oscar Ricor
“NON-PRACTISING ENGLISH SOLICITOR IN ENGLAND AND WALES”, under the “Solicitors Regulation Authority” (SRA) SRA number 519196 and practicing Spanish Solicitor
