Can a Spanish Will accidentally revoke your Will made in England and Wales?

This is the third article in our series on Anglo-Spanish succession planning by Dennis Phillips, Partner in our Private Client team.

In his previous articles, Dennis considered whether a Will made in England and Wales can cover Spanish property and what happens if a Will made in England and Wales excludes Spanish property.

Here, he turns to a problem that often goes unnoticed until it’s too late: what happens when separate English and Spanish Wills haven’t been properly coordinated.

In Anglo-Spanish succession planning, separate Wills can play an important role

They can help keep administration clearer, reduce delay in Spain and allow the English and Spanish estates to be dealt with in ways that better reflect the practical requirements of each jurisdiction.

The difficulty is that separate Wills may appear to deal neatly with different jurisdictions, but they may not necessarily work together as intended unless proper coordination has taken place.

Where a second Will is prepared in Spain without careful reference to an existing English Will, the issue is rarely whether the Spanish Will works in Spain.

More often, the problem is that insufficient coordination has taken place between the two documents, with consequences that can undermine planning intended to remain in place in England and Wales.

How can a Spanish Will revoke a Will made in England and Wales?

Most Wills include a revocation clause. That clause usually states that the person making the Will revokes all previous Wills and testamentary dispositions.

In a domestic context, that is usually exactly what is intended. The new Will replaces the old one.

In a cross-border context, however, the position is more delicate. A person may have one Will for England & Wales, and another Will for Spain. Each may be valid. Each may be useful. But if the later Will is not clearly limited to the assets it is meant to cover, it may revoke the earlier Will entirely.

The problem is not always spotted at the drafting stage. During lifetime, everyone may assume the two Wills sit alongside each other. You may assume that one Will deals with your UK assets and the other deals with your Spanish assets. The advisers involved may each be focused on their own part of the picture, without anyone stepping back to consider how the two documents work together.

During your lifetime, everything may appear to work as intended. It is often only after your death, when your estate is being administered, that the consequences of any lack of coordination between the two Wills become apparent.

Case study

A Spanish Will with unintended consequences: Nuclear in Nerja

Martin and Elaine were UK residents with a home in Surrey and a holiday apartment in Nerja.

They had recently updated their English Wills. Those Wills had been carefully drafted to deal with their UK estate, including provision for children from Martin’s first marriage, gifts to grandchildren and arrangements intended to reflect the family’s circumstances.

A few months later, while visiting Spain, Martin mentioned to a local contact that he owned the Nerja apartment but did not have a Spanish Will. He was advised that making one would make things easier for his family.

That advice was not inherently wrong. The problem was what happened next.

Martin attended a Spanish notary and signed a Spanish Will. The document was drafted in broad terms. It referred not only to his Spanish assets, but to his estate generally and revoked all earlier Wills.

Martin returned home satisfied that he had tied up a loose end. Unbeknown to him, the drafting raised the possibility that much of the careful planning reflected in his existing English Will would no longer take effect.

What happened when the Spanish Will and the Will made in England and Wales were reviewed?

When Martin died, the family assumed that the English Will would deal with the UK assets and the Spanish Will would deal with the Nerja apartment.

The position was not so simple.

The Spanish Will was the later document. It was not clearly limited to Spain and did not clearly preserve the earlier English Will. As a result, questions arose as to whether the earlier planning for Martin’s English estate remained effective.

The difficulty was not obvious during Martin’s lifetime. Like many people with assets in more than one country, he believed he had separate Wills dealing with separate assets. It was only after his death, when the English and Spanish Wills were examined side by side, that questions arose about whether the later Spanish Will had affected the earlier English Will.

Once the documents were reviewed together, the implications of the drafting had to be addressed. What the family had assumed was a coordinated two-Will structure required closer scrutiny to establish the effect of the later Spanish Will on the wider estate plan.

Resolving the position required specialist input, extensive professional correspondence and avoidable expense at a point when the family expected the documents to provide clarity.

How to make sure English Wills and Spanish Wills work together

For many British owners of Spanish property, a separate Spanish Will may be a sensible option. However, it should not be treated as a standalone document where an English Will is already in place.

The key considerations are straightforward:

• the intended territorial scope of each Will should be clear and consistent with the wider estate plan;
• revocation clauses should be carefully considered;
• where more than one Will exists, careful thought should be given to how the documents interact with one another;
• the overall estate plan should be considered across both jurisdictions.

The issue is not whether one Will or two is the better approach. The issue is whether, where two Wills have been made, they have been drafted to work together.

In cross-border succession planning, creating a second Will is often the easy part. Ensuring that it works alongside the existing estate plan is where the real value lies.

Advice on coordinating English and Spanish Wills

If you own assets in Spain or already have Wills in more than one jurisdiction, our Anglo-Spanish Property and Inheritance team can review how the documents interact and help you put a coordinated estate plan in place.

Find out more about our Will writing for Spanish estates and our wider Anglo-Spanish property and inheritance service or contact our Private Client team by emailing info@morrlaw.com or calling us on 0333 038 9100.

Explanatory note
For ease of reading, references in this article to “English” Wills, law, trusts, probate, estate administration and related legal concepts generally mean those governed by the law of England and Wales.

Disclaimer
Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.