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José M.
José M., Attorney
Category: Spain Law
Satisfied Customers: 5857
Experience:  Spanish Attorney
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My partner of 23 years died recently, his UK will made out

Customer Question

My partner of 23 years died recently, his UK will made out in 1993 when he got divorced stated all his estate to be left to his two children.

We sold our joint property in UK in 2007 when we moved over to live together in a house we bought jointly in Spain in 2005 and have resided here together since 2007.
He made a Spanish will in 2012 reading as follows:
CLAUSES:

FIRST: It is the will of the testator to retain its effect will made in England on the 12th December 1993.

SECOND: Name as universal heirs, in equal shares to his sons Robert and Kathryn, who will be replaced by their descendants popularly.

There is no clause in the Spanish will stating I can remain in the house as most Spanish wills have, but he did tell me that he had spoken with his daughter about this and I would be OK. I am now in a what I find to be a very difficult position that 'my home' is a shared property with his two children who I do not really know as he had very little contact with them since he got his divorce in 1993 and moved in with me. The children have always held me responsible for the divorce, although his marriage had been heading in that direction for many years when I was not on the scene. It is not a comfortable position to be in. I spoke with a solicitor in Spain and they advised me to find out what my rights are re the Cessation Act and contesting the division of the home. Could you please advise, do I have any rights at all.
We never married but lived together as man and wife for 22 years. Kind regards.........Frances
Submitted: 2 years ago.
Category: Spain Law
Expert:  Nicola-mod replied 2 years ago.
Hello,

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Nicola
Customer: replied 2 years ago.

Yes I am happy for you to continue with your search, I am making the assumption that if you cannot find anyone then no one else I would/might find and speak to would be able to help me either, or could you point me in a different direction??


 


Could you advise how much time you might need to find someone to assist me with an answer to my question.


 


Kind regards.......Frances

Expert:  Nicola-mod replied 2 years ago.
Hello Frances,

We will continue to look for a Professional to assist you.

I'm afraid JustAnswer cannot guarantee a time, but most questions are unanswered in a timely manner.

Thank you for your patience,
Nicola
Customer: replied 2 years ago.

Thank you I appreciate your trying so hard for me, I look forward to hearing from you again


 


Frances

Expert:  José M. replied 2 years ago.

Hi Frances, I am José M spanish attorney

If the will of her does not say a word about giving you the right of the use of the propiety ( It is called usufructo ) in Spain, your legal situation is that you have the half of the propiety and the right to keep on the use as you has been using for years. So, if they decide to make cash of their rights they have two ways

1 To deal with you and try to get an agrement

2 If not possible to demand the auction of the propiety in court

The first chance is the best for you, because you can pay less that the market price and solve your problem

The second one is hardest for they, they will have to invest money on it, and the time could be for years in several courts...

In all parts you win after all as it coul not be different and it has to be

So, just wait for an answer of they, when they move, try to get an agrement to buy their part in the price you mean, and if they do not want, let they go to go in court to spend money and time...

I will be here if needed

Thank you

Customer: replied 2 years ago.

Thank you Jose, I had received the same information from the lawyer I spoke with in Cordoba, he advised me to speak to a lawyer in the UK to identify whether I had any rights to challenge the will under the cessation act??


 


I cannot find anything when I researched on the internet related to this and it may well be I have no other hope than what you suggest, but I hoped there might have been something else.


 


Kind regards.....Frances

Expert:  José M. replied 2 years ago.

Hi Francés

The answer you need is not in an attorney opinion, is on the will and in the law

If the will does not say anything at all, play your cards as I have told you, you will win for sure

Courts in Spain are expensive and requires a lot of time to fight...

Customer: replied 2 years ago.

Are you saying Jose nothing can be done about the English Will - the fact it was made out so many years ago and we have lived together for over 22 years


 


Kind regards......Frances


 

Expert:  José M. replied 2 years ago.

Really not because international law says that in case of real state propieties the place to go in court is the place of the demanded person adress ( Yours/Spain ) and it own law (spanish) The UK will make no sense here at all, against spanish will.

So, in case to demand you, they have to make it in Spain and according spanish law.

Expert:  José M. replied 2 years ago.

I will answer you as soon as possible if you have more questions left

If you do not have them I gently ask for a good rate of the service

Thank you

Customer: replied 2 years ago.

Sorry Jose, I thought I had sent you another question, what I said was as the Spanish will does not mention anything about the house only the beneficiaries names (his children) and the following clauses:


 


CLAUSES:

FIRST: It is the will of the testator to retain its effect will made in England on the 12th December 1993.

SECOND: Name as universal heirs, in equal shares to his sons Robert and Kathryn, who will be replaced by their descendants popularly.


 


I understand this to read that everything refers to his UK will which states - his estate to be left to his children. This is why I thought the UK will and its content was the key factor in this case and whether anything can be done about that, are you saying that the UK will does not stand up in the courts in Spain?

Expert:  José M. replied 2 years ago.
correct. In Spain, as long an spanish will exits, no other one will be prefered, or considered
better
Customer: replied 2 years ago.

Jose, I am so sorry, please forgive my ignorance.


 


Does the clauses in the Spanish will mean the UK will has to include the property in Spain as part of his estate or not.


Apart from stating he is domiciled in our house it does not actually state his property in Spain is bequeathed to his children only referring to the estate in his English Will.


 


Will the English will be considered/recognised to include half the property owned in Spain or only as it states 'his estate' ie money he has in UK as there is no property in the UK.


 


I hope you understand my question it is not easy to put into words what I am asking.


 


Kind regards......Frances


 


 

Expert:  José M. replied 2 years ago.
Well. All about the will and the law to use has to be UK law and UK court. But in case of dispute about the spanish propiety the law to be used will be spanish law. Just for propieties in Spain. Just to demand to divide the comunity of cowners in Spain.
Customer: replied 2 years ago.

Thank you this I now understand.


 


One last question reverting back to my original question,


 


Is there anything in UK law that that gives me the right to contest or any cessation act regarding - the UK will due to being his partner for such a long time - although not married nor registered as such the fact that we lived together for such a long time - does anything like common law partner have any rights??


 


Regards.....Frances


 


 


 


 


 

Expert:  José M. replied 2 years ago.
I am not the correct expert to answer about UK law.
The aplicable law to the will and the inheritage procedure is UK law.
With that the best they have is to be owner of the half of the propiety. Right. Once they have it they have to demand you in Spain according to spanish law.... And here they will have a lot of problems if they do not de al with you and get an agreement with you
Customer: replied 2 years ago.

Sorry again Jose, could you please re phrase the following:


 


'Once they have it they have to demand you in Spain according to spanish law'


I do not understand what you mean by 'have to demand you in Spain'


 


Thank you.........Frances


 


 


 

Expert:  José M. replied 2 years ago.
I mean that once they get their name in the propiety they will need to demand in court to disolve the society by a judicial auction unless a agreement with you. So it is their best, ***** ***** is very good
Customer: replied 2 years ago.

Jose, thank you so very much you have been very helpful and patient with me and my questions and I feel a little better regarding the property in Spain, although not totally as my fear is they may demand having holidays here whenever they want and I really am not comfortable with sharing my home with them.


 


Regarding the question about Cessation law with the English Will is there anyone else maybe an English lawyer that could answer my question regarding what rights I have if any with the English Will?


 


Kind regards........Frances

Expert:  José M. replied 2 years ago.
You must knew that the law to be apllied to the case is UK law. National law of the passed away person. But it is not really matter as long as the best for they is not bad for you at all. Thank you
José M., Attorney
Category: Spain Law
Satisfied Customers: 5857
Experience: Spanish Attorney
José M. and other Spain Law Specialists are ready to help you
Customer: replied 2 years ago.

Jose lovely to hear from you again, sadly as I intimated last night, I appreciated your response and basically you confirmed what the lawyer in Cordoba had already told me, however upon reading my original question I think I miswrote the point of my question which having re read it, should have read: I spoke with a solicitor in Spain and they advised me to find out what my rights are in English Law regarding the 'Cessation Act' in relation to the English Will Do I have any rights at all. The information you gave me was useful but did not answer the question I was really wanting answering.


Kind regards.........Frances

Expert:  José M. replied 2 years ago.
Hi francés. I hope a UK lawyer will a answer you or repeat the question in the UK law category. I can no answer you a question about UK will. Thank you
Customer: replied 2 years ago.

Thank you Jose, just one more question about something that came up in a discussion today.


 


Embargo


In the event things did not go smoothly, what reason would the Spanish government have to put an embargo on the property?


If an embargo was put on the property, what would this mean to me living in the property, how would it effect me?


 


Kind regards.......Frances

Expert:  José M. replied 2 years ago.
Embargo is a warrant, a guaranty. When you or they owe some money to a spanish goberment as example not paying taxes or to somebody alse, the créditos could put an embargo on the propiety register, si the propiety coul not be sold without paying the embargo first
So, they coul not pay taxes in Spain at all an spanish tax office could seize the propiety (put an embargo)
But they can seize their part ( 50 per cent) and try to sell it in a judicial auction. You could go to this auction to buy it, the court will inform you previously as you reside there and you are the other coowner. In no case somebody coul seize your part if you do not debt money
Customer: replied 2 years ago.

Thank you Jose,


 


I understand this perfectly now.


 


I hope my other question regarding Cessation Act will be responded to by an English lawyer as good as you.


 


Take care and good luck


 


Kind regards......Frances

Expert:  José M. replied 2 years ago.
Thank you. Have a good night

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