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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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I co-own a property in Spain with my mother & step-father.

Customer Question

I co-own a property in Spain with my mother & step-father. We all agreed when we bought it that it would remain between us, and this agreement would be stipulated in our Wills. I have honoured the agreement in my Will, and my parents have a copy of this. However, my parents recently moved house, wrote a new Will, and refuse to divulge the details. Can I take action which solidifies our agreement and ensures they leave their share of the property to me in their Will, as per our original agreement?
Submitted: 5 months ago.
Category: Law
Expert:  F E Smith replied 5 months ago.

Is there a reason do you think that they will not show you their wills although than the Spanish property?

Do you have this agreement anywhere in writing?

Have you written Spanish wills in respect of the property?

Customer: replied 5 months ago.
Thank you for the response. Yes, I spoke to my mother about 18 months ago about my childhood - specifically sexual abuse - for the first time. Since then we have gone from speaking regularly to not speaking at all. She has not denied that abuse took place. Then she moved house and refused to comment on their new will. I have asked her many times why she will not show it to me and she mentions 'goodwill' and the fact that she does not currently know my address. I find this all extremely perturbing, obviously.We don't have the agreement in writing, but she has mentioned recently in emails that she considers it to be a 'goodwill' agreement, and she is honouring this. We drew our original wills up together, with a stipulation that the Spanish property would remain between us. I still have my copy.I have suggested writing up Spanish wills but she will not cooperate & keeps deflecting or not answering at all. What should I do?
Expert:  F E Smith replied 5 months ago.

Ideally, you should have Spanish wills. Laws of succession in Spain may be completely different than the UK. Certainly, in France they don’t even bear a passing resemblance. It may be therefore that whatever you have in your English wills, regardless of what the provisions are with regard to the property, it doesn’t apply to Spain in any event. You cannot compel anyone to have either a Spanish or in English or any other kind of will.

It seems strange that you will this property together but she doesn’t know your address. If you have a series of emails which would prove on the balance of probabilities that there was an agreement that if anyone died, their share of the property would go to the survivor, that would assist any claim that you would bring.

You cannot make anyone you the will, even executors. Beneficiaries have no absolute right to see it although anyone can get it from the Probate Registry once a will has been admitted to probate.

In the interim, there is nothing that you can do about this until such time as one of your co-owners dies and at that stage (notwithstanding Spanish legislation with regard to Spanish inheritance) when you would be forced to bring a claim under the legal doctrine of Promissory Estoppel. This arises if someone made a promise as in your case and you rely on that promise in the future. They are then estopped from going back on the promise. It’s a complicated legal issue and certainly not something that you’d want to tackle yourself because even solicitors do not deal with it routinely.

Can I clarify anything for you?

Please don’t forget to rate the service positive. It’s an important part of the process by which experts get paid. We can still exchange emails.

Best wishes.

FES.

Customer: replied 5 months ago.
Thank you again, this is very helpful.I do have a series of emails which would support my claim, yes. I will advise her again that a Spanish will is necessary. I had no fixed address for 3 months, but now I do, so I will inform her of that.Once someone dies, can I then hire a solicitor to execute my case, if there is a problem? Would this take place in England or in Spain?These are my final questions, then I will rate your response, which has been excellent so far.J
Expert:  F E Smith replied 5 months ago.

There is nothing you can do at present (until one of them dies) except to write or get the solicitor to write detailing exactly what was agreed and saying that unless provisions are made for the property to pass under the right of survivorship there in the will, then when either of the co-owners is eventually deceased, if those provisions are not put in place, you will be instigating legal proceedings at the expense of the estate enforce what was agreed. There is no need to tell them the legal doctrine.

I don’t know the legal situation in Spain but this litigation will be conducted in England.

Best wishes.

Customer: replied 5 months ago.
Excellent, thank you very much, especially for the swift replies too.Regards,J
Expert:  F E Smith replied 5 months ago.

I am glad to help.

Best wishes.

FES.

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