A foreigner may make a will in Spain, and we must bear in mind that the Hague Convention of 5 October 1961 on the law applicable to the validity of testamentary dispositions will apply.
This international convention deals with the form of testamentary dispositions, a matter also regulated by the EU Succession Regulation in its Article 27, which copies the rules of this Convention.
And, in Spain, once this convention has been ratified, it means that Article 11 of the Civil Code will not apply to international matters concerning the validity of testamentary dispositions as to their form.
This international convention establishes alternative connecting factors, and a testamentary disposition will be valid:
- If it complies with the law of the place where the testator made the will
- If it complies with the law of the testator’s nationality
- If it complies with the law of the place where the testator had their domicile or habitual residence at the time of making the last will
- If there is real estate in the testator’s estate, the law of the place where it is located.
To understand how important it is to know how to make a will, take the example of a 17-year-old Vietnamese citizen with habitual residence in Spain who makes a will and dies shortly afterwards. Spanish law may be a connecting factor given his habitual residence, but it requires the testator to be of legal age, a concept governed by the law of his nationality, Vietnamese law (in accordance with Article 9 CC), which provides that he must be 16, so that in the end his will is valid. The importance of the validity of a will lies in the fact that if a will is declared void for lack of formal requirements, intestate succession will open, and nothing will be respected of the testator’s wishes expressed in that void will.