Practice Changes

Against the backdrop of the continual development of our Spanish asset will, there have been the practice changes within the Spanish Notarial system which we have had to cater for, which have raised issues in relation to Spanish asset wills executed in the UK. The two specific developments which have concerned us most recently are: the strengthening of the requirements for authentication of translations in the case of non- Spanish individuals executing Spanish legal documentation; and the increasing regularity of instances of Spanish Notaries demonstrating skepticism as to the capacity of UK Notaries Public to create “public documents” in the sense of being immediately admissible in Spain (once Apostilled).
In the former case, we have provisional acceptance by the Notaries that the inclusion of a certification of accuracy by the official translator will be acceptable to guarantee the accuracy of the translation, at first instance (even though the official translator is not present at the time of signature, which is another recent additional standard requirement).
However, the Notary and/or Property Registrar is still entitled to call for a post de- facto certification of the translation at the time of registration of the succession. So, although this circumvents the issue (given that the translation can be officially pre-approved), it does mean that there is now a risk that a Spanish asset will executed in England can no longer be regarded as a stand alone document; and a verification certificate may be called for (and will need to be paid for) at the time of probate.
The second issue, as mentioned above, is the concern within the Spanish Notarial profession regarding the (absence of the) legal capacity of a UK Notary Public to create a “public document” for the purposes of governing Spanish law. What this means in practice is that if (by way of contrast) the Spanish asset will is executed in Spain, the document immediately becomes a “public document” and is directly legally admissible as the base document for succession in Spain. However, because there are questions as to the capacity of a UK Notary Public to create a “public document” (irrespective of the attachment of the Apostille), there is a technical argument that until the will executed in the UK) (although of Spanish assets only) is admitted to probate in the UK, it does not become a “public document” in the eyes of Spanish law.
Clearly the prospect of being forced into a situation where a Spanish Notary (or Property Registrar) is calling for an English law Grant of Probate in respect of a Spanish asset will, just because it is executed in the UK, is not one we want to get into.
Through discussions with a highly experienced and respected UK Notary Public and also the official translator of the Spanish Ministry of Foreign affairs, we have satisfied ourselves that through appropriate Certification of Law, we will be able to conduct a Spanish probate case pursuant to a Spanish asset will executed in the UK through a UK Notary Public (and validly Apostilled and registered), and that we will be able to deal with any requisitions arising. (The principal statutory provision in support being: Rule 32.20 of The Civil Procedure (Amendment No.3) Rules 2005).
However, that does not detract from the fact that, executing a Spanish asset will in the UK is not viewed in the eyes of the Spanish Notaries and Property Registrars, as proceeding in the officially “correct” manner. (i.e. the officially “correct” manner being the execution of the Spanish asset will in Spain). Therefore we have to recognise that to execute the Spanish asset will in the UK (as was formerly more readily acceptable) is now really akin simply to exploiting a loophole in the legislative requirements and Notarial practice.
The specific example we would give of an appropriate case for a Spanish asset will still being executed in the UK is that of an elderly person who has been living in Spain for a number of years, but due to ill health, has returned to the UK and is unable to return to Spain. In that case, we would be quite comfortable in recommending the route of execution in the UK. (i.e. given the absence of an alternative Spanish asset will solution).

However, given the specific input we have had from the Spanish authorities in the light of the recent practice changes, our conclusion is that it would not be correct for us to recommend in future routine cases (where, in the reasonably foreseeable future, a healthy testator will be in Spain) for the testator to execute the Spanish asset will in the UK.

Advantages of execution in Spain
All the benefits to your clients of dealing with Spanish asset wills at the same time as dealing with their UK wills, remain unaffected by these changes. And these benefits are very considerable indeed to your clients. In fact, there are serious inherent risks in not dealing with the wills of UK and Spanish assets simultaneously and in a complementary format. Therefore, this service is highly worthwhile and valuable to the hundreds of thousands of UK- based owners of Spanish properties.
Also, the procedure in dealing with a Spanish asset will executed in Spain instead of one executed in the UK, (both as between us and from the point of view of the clients) is more or less identical, save that instead of signing the Spanish asset will before a UK Notary Public, it is signed at the local Notary next time they are in Spain (in an appointment which is pre-organised by us).

The specific advantages of the Spanish asset will being executed in Spain (instead of in the UK) are:

• Spanish Notary fees are generally considerably lower than the fees of UK Notaries Public.
• The Spanish Notary fee includes (compulsory) lifetime secure storage of the original will.
• Registration of the will at the Spanish Wills Registry in Madrid is deemed to take effect immediately- no delay or risk of lost documentation in dealing with the Apostille, etc.
• We pre-agree the document in advance with the Notary and set up arrangements for in-house authentication of the translation. Therefore, once accepted by the Notary, no requisitions can be subsequently raised regarding the manner of execution or translation. The will is therefore conclusively a “stand alone” document.
• The Spanish Notary under Spanish law has the legal power to make a will signed in Spain as a “public document” upon signature- this immediately gives the will (upon the death of the testator) the same legal validity as a UK probated will- but without the need to go through a probate equivalent process of court authorization. The Spanish Notary guarantees the validity of the document and the identity of the testator, etc. Clearly, therefore, the Spanish Notary, without any question, performs a much more powerful function than a UK Notary Public, which is immediately recognized as such by the Spanish authorities.
• The final advantage of the procedure we are recommending is that the client has access to us (bi lingual and both UK and Spanish law qualified / experienced) experts in the product, to deal with any queries and to liaise with the Spanish Notaries on the client’s behalf. We are “plugged in” to the national Spanish Notary network, so can usually find an appropriate Notary with the requisite bilingual facility and ability to operate within this established system, within minutes, anywhere in the country.