WILLS AND BREXIT AGAIN - JMS Lawyer

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Spanish law in plain English

WILLS AND BREXIT AGAIN

31/10/2018
WILLS AND BREXIT AGAIN

This article deals with the issue about wills made by English people in Spain before the entry into force of the European Regulations about applicable law to succession which were made without a specific choice of law to apply to the succession

What is the issue?

So, I am going to clarify what happens when an English person made a will in Spain before the European Regulation regarding the applicable law to succession/inheritance came into force. Usually, those wills were made without making a specific choice of which law to apply to the inheritance.

What does the European Regulation on applicable law to inheritance say?

The European Regulation mainly says two things:

  1. That there must be only one law applicable to the inheritance.

  2. That this law will be the law of the place where the person who passed away had their main residence unless he or she specifically chooses that her or his inheritance will be ruled by the law of his or her nationality at the time of making the will or at the time of death.

So, what is the situation?

Some time ago we gave our opinion on this matter in this post and we concluded that:

  1. People who made a will and did not specifically choose for their national law to be implemented will be subject to the general rule. This is, (a) the habitual residence law will be applied if the European Inheritance Regulation is applicable before Brexit takes place or (b) the law of their nationality will be applicable according to the Spanish Civil Code once the European Inheritance Regulation is not applicable because of Brexit.

  2. People who made a will and specified which country’s inheritance law would apply to their assets and inheritance can continue with this choice so long as their national law allows it.

Now the question is:

What is a choice of law?

And now we reach the core issue. A choice of law can basically be made in two ways. One is to make a will with a specific stipulation that you wish English law to apply to your inheritance. And that is it. Choice of law made. But this is only made in wills after the European Regulation came into force because, in a way, the said Regulation required that choice of law. The other one is foreseen in the very same European Regulation when it says: “If a disposition of property upon death was made prior to 17 August 2015 in accordance with the law which the deceased could have chosen in accordance with this Regulation, that law shall be deemed to have been chosen as the law applicable to the succession.” So, translated into normal language, if an English person made a will according to English law before the European Regulation came into force, it is understood that the testatrix or testator made a choice in favour of English law ruling their succession. Simple as that.

Conclusion.

If you are in the position described above, there is no need at all to make a new will after the European Inheritance Regulation came into force.

Besides, we must take into account that after Brexit, this European Regulation will not be applicable at all to the United Kingdom.

Thank you.

Thank you for your time and attention and I hope this information is of use. You are very welcome to share it if you liked it. You could be also interested in the following post.

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.

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