The Spanish National, the Alicante Apartment and the 'Notarial Will'
A woman who is a Spanish national, domiciled and habitually resident in Ireland for twenty years, owns a holiday apartment in Alicante, shares in an Irish trading company and Irish bank accounts. She wants the notary to 'make a Spanish-style notarial will' dealing with all her assets. She has two children; she wants the Irish assets to go to her daughter and the Spanish apartment to her son. She also wants to know whether the notarised document will be accepted in Spain without further formality, and whether she can avoid the Spanish forced-share rules by saying so in the will.
1. Is a will executed before an Irish notary formally valid, and what formalities should be observed?
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Formal validity is a choice-of-law question, and Ireland's answer is generous.
Ireland is a party to the 1961 Hague Convention on the Conflicts of Laws relating to the Form of Testamentary Dispositions. A will is formally valid if it complies with the internal law of: the place where it was made; the testator's nationality; domicile; habitual residence; or, for immovables, the law of the place where the property is situated.
A will signed by her before an Irish notary in the presence of two witnesses who are both present at the same time and who attest her signature therefore satisfies Irish law (Succession Act 1965, s.78), Spanish law as the law of her nationality, and the law of her habitual residence.
The danger lies in the phrase 'Spanish-style notarial will'. Ireland has no distinct notarial will: a document executed by the notary alone, without attesting witnesses, might satisfy Spanish form but would fail in Irish probate. The safe course is dual compliance - two independent witnesses, neither a beneficiary, the testator signing or acknowledging in their joint presence, and the notary recording the formalities and that the will was read over to her.
2. Which law governs the succession, and what can the notary properly say about the Spanish forced-share rules?
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Two regimes are in play and the notary must not blur them.
- Applicable law. Under the EU Succession Regulation (650/2012) the governing law is that of the testator's habitual residence at death - here, Irish law - unless she elects the law of her nationality. An election under Article 22 applies to the whole succession, not to the Spanish apartment alone.
- Consequences. If Spanish law governs, the Spanish forced-share rules apply across the entire estate, including the Irish shares and accounts, and her plan to give the Irish assets to her daughter may be substantially defeated. She cannot select Spanish law for the apartment and Irish law for everything else.
- Competence. The notary may explain the Irish position and the existence of the election, but he must not advise on Spanish forced-share calculations or draft a will whose Spanish effect he cannot assess. He should insist on a written opinion from a Spanish abogado before execution and record that advice was recommended and obtained, or that the client declined it after warning.
- He should also consider whether earlier Spanish wills require express revocation, and advise on the European Certificate of Succession for use in Spain.
3. What practical steps should the notary take at execution, and what should his certificate not claim?
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Points within the notary's control:
- Language. If a Spanish version is needed, have it prepared by a sworn translator and decide which text prevails. The notary reads over the prevailing text, and the certificate records the translator's identity and declaration.
- Witnesses. Two, present at the same time, neither a beneficiary nor the spouse of a beneficiary, each signing in the testator's presence.
- Title. Do not style it a 'notarial will' as though that were an Irish instrument. Describe it accurately as a will executed before a notary, reciting the formalities.
- Capacity and influence. See her alone at least briefly; the son who takes the apartment should not be the person who arranges the appointment or translates.
- Retention. Wills are not registered in Ireland. She should be advised to tell her executors where the original is kept, and any Spanish will should be registered in the Registro de Últimas Voluntades.
- Limit of the certificate. The notary certifies the formalities observed and her apparent understanding. He does not certify that the will is effective in Spain, that it defeats forced shares, or that it is tax-efficient.