It is a normal practice in Spain to recommend foreign clients who invest in Spain that they execute a Will at the Notary in order to rule their inheritance in Spain.
As this usually accelerates the acquisition of assets out of inheritance, it has become very popular that the solicitors arrange shortly after completion an appointment to do the Wills and sort out this important formality.
Even though doing the Will at the Notary seems easy, there are two important points which in many cases are forgotten and that your legal adviser should take into account: on the one hand, the restrictions to inheritance that your national laws impose; on the other hand, the side effects of permanent residency in Spain.
As to the first point, the main rule is that your national laws rule your inheritance, even though you are no longer living in your own country.
We could say that your national laws follow you across borders and rules those issues that are connected to nationality, such us inheritance and personal capacity to enter into contracts.
This means that you can do a Will in Spain but such will has to comply with your essential national laws concerning inheritance.
In other words, you cannot do a Will in Spain which would be rendered as invalid or illegal under your national laws, since it would become invalid as well.
Consequently, before doing a Will, it is advisable to check if your national laws establish limitations or restrictions, or if none exist, in order to avoid making a will which in the end could be rendered as invalid.
Of course, this question is not that important where English nationals are concerned, but it could be important when dealing with nationals from other countries (Irish, Scottish, Dutch etc).
Concerning the second point, permanent residency in Spain may have detrimental side effects over the decisions you make in your Will, since it may give rise to the application of Spanish inheritance law, which is much more restrictive.
In this regard, there was a ruling issued by the Supreme Court in 1998 where a Will made by a British national, who had been living for 30 years in Spain but never gave up being British, was rendered as null and void as it did not comply with the Spanish inheritance law requirements.
The reasoning of the court is arguable but it is worthy to take into account that apparently British law establishes that where a British national does not have any connection to his national country and his assets are all in another country where he lives, the laws governing inheritance in the country where he is living are to apply instead of British laws.
In that case, the fact was that Spanish law (with all its restrictions, such us the fact that the children inherit compulsorily 2/3 of the total inheritance) was applied and the Will, which had been made in favour of the second wife, was rendered null and void as a result, in detriment of the wife.
As this ruling is a precedent and it implies a risk for the validity of the Will, it would be wise to recommend all foreigners – specially British nationals – that they keep some connection with their national country.
Such connection should be preserving some assets (bank accounts, property, etc) in order to ensure that the national law shall be applicable.
At the same time, it would also be appropriate to draft a Will with a lawyer and agree all the clauses in advance so any last minute confusion and include a clause in the Will stating who your heirs would be, in the event Spanish law was to be applied.
