Many foreigners resident in Spain go to great lengths and expense to try and put their affairs in order to avoid complications for their families after their deaths.  It can come as a great shock and a disappointment to discover that the arrangements which were so carefully made fail to have the desired effect.

Every so often we come across so-called “International Wills” which have not been prepared by lawyers and which do not have the effect which the testators desired.  These Wills usually fail for two main reasons.  Firstly, they do not fulfill the formal requirements for Wills and secondly the language used in them is ambiguous.

Confusingly, there are two international conventions on recognition of Wills.  First, the Hague Convention of 1961 on Testamentary Dispositions, and second the Washington Convention of 1973 on International Wills.  The UK is a party to both conventions, but Spain is only a party to the earlier convention of 1961.  A so called “International Will” which satisfies the 1973 convention may be valid in the UK but may not be valid in Spain.

The 1961 convention provides that a Will is valid if it has been signed in accordance with the law in force in any of the following places

·           The place where the Will was executed, or

·           The place where the testator was domiciled either at the time the Will was made or at the time of his death, or

·           The place where the testator was habitually resident either at the time the Will was made or at the time of his death, or

·           The country of which the testator was a national at the time he made the Will or at the time of his death, or

·           With respect to the provisions of a Will relating to land and buildings the place where the property is situated.

So in a typical situation, a Will made by a British citizen resident in Spain will be valid in Spain if it either complies with the formal requirements of Spanish Law, or the Law of England and Wales, Scotland, or Northern Ireland.

The second reason why a Will may fail is because the language used may be ambiguous.  The language used in a Will should be clear and not open to misinterpretation.   Sometimes attempts to use technical terms can produce results that a testator did not intend and English law will assume that a technical term will have a technical meaning unless the testator provides their own definition or explanation in the Will.    

This can also apply to “pet” names given to family members.  For example, if you refer to intend to leave a legacy to family member that you call “mother”, or “nan”, it is vital that you identify this person by name to avoid misunderstandings and competing claims by other members of the family. 

Another example of an ambiguous term that is often found is the word “offshore”.  In the world of business and finance this word is used to refer to places which provide a favourable tax regime to investors, but could this be applied to property and investments in Spain where the tax burden can be heavy?

It can be very costly to resolve questions of validity and ambiguity of Wills through the courts after a testator has died.  If you have a Will and are concerned that it may be ambiguous, or may not reflect your wishes as you intend, it is please consider having it reviewed by a qualified lawyer and perhaps make a new Will while you still can, rather than leave a legacy of expensive litigation and heartache for your descendants.