Is it necessary or advisable to make a new will or to make a will due to the Brexit?
Do I have to make a new will? Or Do I have to make a will? Many clients ask this questions due concerned by the Brexit and the consequences that it may have on their interests in Spain.
And it is a very good question. And the answer is always the usual answer lawyers use to give. It depends. But in this case there are strong reasons to respond this way (jsut in case). To begin with Brexit conditions are uncertain yet. Secondly, As a general rule nobody knows when they are going to pass away. Third, as nobody knows the time they will pass away nobody knows which will their personal and financial situation be at that time. Fourth, due to forementioned reasons we do not know what the regulations will be at the said time.
Is is a fact that in the European Union due to the freedom of movement many people is living abroad and have interests in other countries rather than their own. And this phenomenon is increasing. Due to this fact an inheritance could be subject to many different national laws (the one where properties are located, the one of the nationality of the deceased, the one where other assets are located, etc.) which made the whole issue really complicated.
For this reason the European Union approved a regulation which ruled that only one law is applicable in cases of this kind. This law is the one where the deceased has their main residence unless they chose the law of the State whose nationality they possess at the time of the choice or at the time of the death. (I am summarizing brutally here). This regulation is applicable from August the 17th 2015. Before that regulation the situation was the one foreseen in the Spanish Civil Code which states that the applicable law of the succession will be the one of the nationality possessed by the deceased at the time of their death.
Answer to the legal query
Having said all the above, my opinion is as follows:
- People who has a will without a specific choice of their national law will be subject to the general rule. This is, (a) the habitual residence law will be applicable if the European regulation is applicable before the Brexit takes place or (b) the law of their nationality will be applicable according to the Spanish Civil Code once the European regulation is not applicable due to the Brexit. But people made a will before the Regulation according to their national law the Regulation understands that they amde an implicit choice of the law of their nationality. So there is no need to make a new will then.
- People who has a will having made a choice of law this will be correct if their national law allows the choice made.
Only in the situation where someone has a will made without a choice of law it could be advisable in my opinion to make a new will just to make a choice of law to avoid the application of the European regulation.
It is advisable to make a will in general
From my experience, it is very advisable to make a will in general. It makes things easier. Much easier. So I do always recommend to make wills in general when people have some interests in Spain.
Thank you for your time and attention and I hope this information is of use. You are very welcome to share if you liked it. You can also be interesting in the following post which is an update of this one.
Please, note that this is general information on legal subject and cannot be used as specific advice on legal situations. It is always recommended to seek legal advice for any specific situation you might be involved.