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Practical case study: Contested Probate UK - Spain

This information has been prepared by Sykes Anderson Perry Limited as a general guide only and does not constitute advice on any specific matter. We strongly recommend that you seek professional advice before taking action. No liability can be accepted by us for any action taken or not taken as a result of any information or advice given or omitted

Mark and Ines are a married couple. Mark is English and Ines is Spanish. Ines has been living in the UK for the last 50 years. Ines has two adult children with whom she hasn’t had any contact since she married Mark 20 years ago.

Mark and Ines have a family home in London held as joint tenants and bank accounts also in joint names. Ines inherited a property in Marbella from her parents. Ines is in frail health and wishes to make a will leaving everything to her husband.

Ines has heard that English law can apply to her estate thanks to a new regulation. Her intention is that everything passes to her husband so he can decide how the property is dealt with.

Ines cannot elect for English law to apply to her succession. The only law that she can elect is Spanish law. if English law applies to Ines’ estate under the Regulation on the basis of her habitual residence, renvoi is included, and Spanish law would apply to her Spanish property.

If Spanish law applies her children will be entitled up to 2/3 of the property. To avoid uncertainty one option available to Ines would be tomake a Spanish will covering her worldwide assets and electing for Spanish law to apply. Ines would be able to include a Socini clause whereby she can leave the life tenancy of the whole estate to her husband and the underlying ownership to her children. In which case, the children, would not be able to sell the house without Mark’s consent and Mark can benefit from the use of the property. If any of the children disputed the will their entitlement would be reduced under this clause.Since the UK assets are jointly held they would pass automatically to Mark.

Another option would be for Ines to apply for British nationality and surrender her Spanish passport. In this case, she would be able to apply English law to her entire estate.

March 2019
Álvaro Aznar Azcárate
Solicitor and Spanish Abogado