A UK Will and a Spanish Will: When One Revokes the Other

How can a new will revoke a will in the other country?

Some owners of Spanish property hold two wills: a Spanish notarial will (often simply called a Spanish will) for the Spanish assets, and a will made in England for everything else. Keeping a separate will for each country is sometimes called a situs will arrangement. A Spanish notarial will can be revoked by accident. Where Spanish law governs, a later complete will revokes it unless it says otherwise (Código Civil art. 739). Where English law governs, a general revocation clause in a later will made only for assets in another country can still revoke the earlier will in full (Sangha v Sangha [2023] EWCA Civ 660).

Under English law a will, or any part of it, is revoked by a later will or codicil, by a writing declaring an intention to revoke that is executed like a will, or by destruction with the intention of revoking it (Wills Act 1837 s.20). A later will can contain a general revocation clause, such as "I revoke all former wills". In Sangha v Sangha the Court of Appeal held that a later will dealing only with assets in India, with a general revocation clause, revoked the testator's earlier will covering both Indian and English assets in full (Sangha v Sangha [2023] EWCA Civ 660, paras 1, 51 and 107).

The court treated the clause as strong evidence of what the testator meant, to be overcome only by clear evidence on the balance of probabilities, and it rejected any starting point that a will made for one country is presumed to leave the other country's will alone (Sangha v Sangha [2023] EWCA Civ 660, paras 47, 49, 51, 57, 58 and 60; Lamothe v Lamothe [2006] EWHC 1387 (Ch), para 35).

Under Spanish law a will can be revoked, in whole or in part, only with the formalities needed to make a will (Código Civil art. 738). A later complete will revokes the earlier one by operation of law unless the testator states in the later will that the earlier one is to survive in whole or in part (Código Civil art. 739). Spanish law therefore needs no revocation clause: silence in the later will is enough.

Which law decides whether the earlier will is revoked?

Two questions arise: whether the later will is valid in form, and whether in substance it revokes the earlier one. The UK and Spain answer them under different rules, so the two countries can reach different answers.

The rules on form are wide. Spain and the UK are both party to the Hague Convention of 5 October 1961 on the form of testamentary dispositions, which Spain applies instead of the Regulation's own form rule (Succession Regulation art. 75(1)). A will is valid in form if it complies with, among others, the law of the place where it was made or of the testator's nationality, domicile or habitual residence, and a revoking will is also valid in form if it complies with any law under which the revoked will was valid (Hague Convention 1961 arts 1 and 2). The UK applies the same rules through the Wills Act 1963 (ss.1 and 2(1)(c)).

For substance, Spanish authorities apply the Succession Regulation. The revocation is governed by the law that would have governed the succession had the testator died on the day the revoking will was made; if that will validly chose a law, the chosen law governs (Succession Regulation art. 24(1) and (3)). The interpretation of the will, including how far a revocation clause reaches, is part of that question (art. 26(1)(d)). A later change of the law applicable does not take away the capacity to revoke (art. 26(2)).

If the governing law is Spanish law, Código Civil art. 739 applies and the earlier will falls unless the later one says it survives. If the governing law is English law, Wills Act 1837 s.20 applies and the reach of the revocation clause is a matter of interpretation. Whether renvoi (art. 34), the rule under which English law's own conflict rules can refer a question back to Spanish law, can send the revocation of a Spanish will back to Spanish law for Spanish land, where the testator lived in the UK, is not settled by any official text.

The UK did not take part in the adoption of the Succession Regulation and is not bound by it (Succession Regulation, recital 82). UK courts apply their own rules to the question.

What happens in Spain when the Spanish notarial will is revoked?

If the succession rests on a UK will, Spanish registrars require the UK grant of probate (DGSJFP resolution of 29 April 2024), apostilled (Hague Apostille Convention 1961, arts 2 and 3; Reglamento Hipotecario art. 36). They also require it translated into Spanish by the Office for the Interpretation of Languages (Oficina de Interpretación de Lenguas), by officials authorised under laws or international conventions or, where applicable, by a notary; the registrar may dispense with the translation if the registrar knows the language (Reglamento Hipotecario art. 37). The apostille takes the place of the older legalisation that art. 36 names (Hague Apostille Convention 1961, art. 2). The DGSJFP has accepted that no UK grant is needed where the testator made a Spanish notarial will covering all of their assets and choosing the law of their British nationality, expressly or by an unmistakable tacit choice (DGSJFP resolution of 29 April 2024). The resolution does not say whether a UK grant is needed with a Spanish notarial will that covers only the Spanish assets or makes no choice of law, and it does not deal with UK intestacy or letters of administration.

When a later English will revokes the Spanish notarial will, the Spanish property passes under the English will, and the executors need the UK grant before the Spanish deed can be registered. Where Spanish law governs the revocation, it stands even if the later will lapses because the heirs named in it cannot or will not inherit (Código Civil art. 740), and the earlier will regains its force if the testator later revokes the later will and expressly declares that the first is to stand (Código Civil art. 739).

Which law governs the Spanish property is a separate question from the revocation. Spanish notaries and land registrars apply English law, the law of the last habitual residence, to a UK-resident deceased (Succession Regulation art. 21), but English law refers land to the law of where it lies, so Spanish law governs the Spanish property (renvoi, art. 34.1(a)). This does not apply if the will validly chose English law (art. 22, or a pre-August 2015 will under art. 83). Spanish legal writers debate the resulting split of the estate.

Separate wills for each country or one will for everything?

A single will covering assets in both countries (often called a worldwide will) and a separate will for each country are both possible. Neither arrangement is free of the revocation question: a single will made after a Spanish will can revoke it, and a Spanish will made after a single will can revoke it (Código Civil art. 739; Wills Act 1837 s.20).

With a single will, the succession to the Spanish property rests on a UK will, so Spanish registrars require the UK grant of probate (DGSJFP resolution of 29 April 2024). With a Spanish notarial will that covers all of the testator's assets and chooses the law of their British nationality, the DGSJFP has accepted that no UK grant is needed (DGSJFP resolution of 29 April 2024). A Spanish notarial will limited to the Spanish assets is not the case that resolution describes, and the resolution does not say whether a UK grant is then needed.

With two wills, Spanish law requires a later will that is meant to leave the earlier one in place to say so (Código Civil art. 739). On the English side, whether a later will's clause reaches the other will turns on its words (Sangha v Sangha [2023] EWCA Civ 660). Each will can only say so accurately if the person drafting it knows the other will exists.

Common errors about two wills

"A Spanish will is safe unless the new English will contains a revocation clause." Where Spanish law governs the revocation, a later complete will revokes the earlier one unless it states that the earlier will is to survive; no clause is needed (Código Civil art. 739).

"A will that only deals with one country cannot touch the will in the other." The Court of Appeal does not start from that presumption: a general revocation clause in a later will limited to one country's assets revoked an earlier will covering another country as well (Sangha v Sangha [2023] EWCA Civ 660).

"Spanish law is the default unless the UK will elected English law." Under the Succession Regulation the default is the law of the last habitual residence (art. 21), and a UK national can choose only the law of their nationality (art. 22). For a UK-resident deceased, Spanish notaries and land registrars apply Spanish law to the Spanish land under art. 34.1(a) unless the will validly chose English law. Where a law was chosen for a will under art. 24(2), the will's revocation is governed by the chosen law (art. 24(3)).