The Ruling dated October 1, 2020, by the “Dirección General de Seguridad Jurídica y Fe Pública” (General Directorate for Legal Security and Public Authority), addressed the following issue: A Spanish Notary authorised a title deeed where a widower accepted the inheritance of his deceased wife, who was a British national with domicile in England. The deceased lady had made a will in Spain, stating her wish to dispose of her estate in accordance with her national law (English law), naming her husband as the sole heir and also appointing him as executor, should it be necessary to carry out any testamentary provisions. The only assets of the deceased were located in Spain (an undivided half share of an apartment), and she had no assets in the UK despite maintaining her domicile there.

When the deed was submitted for registration in the Spanish Property Registry, the Registrar rejected the title, asserting that, prior to the registration, it was necessary to obtain a Grant of Probate in the UK. The Registrar further stated that if, after attempting such a procedure, it turned out to be impossible to obtain the probate due to the absence of the deceased’s assets in the UK, only then could a solution be sought based on the material impossibility of applying British law. In such a case, the subsidiary or integrative application of Spanish law could be used in a limited manner, i.e., only in those aspects not governed by British law (a principle recognized by the Spanish Supreme Court), and in such a case, the will could be accepted without requiring probate.

The Notary who authorized the deed appealed the Registrar’s decision. The “Dirección General” finally ruled that obtaining the Grant of Probate cannot be required in Spain for a succession involving assets located in Spain, and having the deceased signed a will in Spain. The “Dirección General” explained that lex rei sitae implies that the procedures necessary for the transfer of real estate, once the succession mortis causa is established (Section 1 of the European Succession Regulation), are determined by the law of the place where the property is located, with the necessary adaptations. Therefore, Section 14 of the Spanish Real Estate Law, as amended by the first final provision of Law 29/2015 of July 30 on international legal cooperation in civil matters, applies, which states that a will is a valid title for succession purposes, regarding the Property Registry. As a result, the appointment of an executor by the British Probate Service, an institution concerned with the liquidation of assets in the UK, is not required.