Where there is a will there is a greedy family!

Seth Brundle

If a person (Paddy) had property both here and in Spain and then made a will in Spain giving the property to pereson A (but not mentioning what would happen the Irish property). Then a few years later Paddy made out a will giving the property to their entire extended family (to be divided evenly).

Unfortunately Paddy then died. Legal clarification declared that the Irish will stood and that everything was to be divided and that the Spanish will was now void.

However, it appears that because of various delays (mostly because despite one of Person A's parents being a co-executor to the estate and they refused to sign documents - to the extent that the estates solicitor threatened high court action against them) the Spanish authorities were not made aware of the Irish will (Paddy never told them!)

Person A proceeded to have the Spanish property transferred into their name. The estate were unaware that Person A was processing the Spanish will.

What is the likely outcome from this? Is this a form of fraud? Could the estate sue Person A for the assets?

dermot_sheehan

If the Spanish will was invalid how did person A secure the transfer of the Spanish Property? The spanish property would be governed by the laws of Spain and the question of whether Spanish law recognised the irish will as recoking the previous spanish will and if the actions of Person A constituted a fraud in Spain.

padser

I don't think so.

The second will will have invalidated the first one. It really shouldn't matter where the property was held, you are entitled to make one will governing it all, and if you make another then it will supercede the first one.

I think, certainly under Irish law, if the person knew that the Irish will existed then it will end up being a trust situation (god forbid) and Person A will hold it on trust for the people meant to recieve it under second will.

Of course spanish law could be different, but there is no reason to assume that it wouldn't view the irish will as valid (unless someone has any specific knowledge of spanish law??)

Ha, who knew I would find an actual use for trusts!!!

Seth Brundle

Thanks for the posts folks.
@gabhain - from what I know, the Spanish authorities were not yet made aware of the Irish will due to delays by one of the co-executors (the mother of Person A) who disagreed with the possibility that her son may not benefit from the will. The solicitor was ready to process the Spanish will bus as I said the co-executor was threatened only last week with High Court action if she didn't carry out her executor responsibilities properly.

Person A was not (AFAIK) made aware in writing of the Irish will but was well aware of its presence especially given that their mother is (supposedly) an executor of the estate and also given that an offer was made by the other executor of 80K to cover disappointment (!) due to being in a position where they were ending up getting nothing (this offer was subsequently rejected!)!

However, even if it was a case of Person A placing the property in trust - what authorisation had they to do this? Could fraud charges be brouught against them however difficult?

mountainyman

The Spanish will may still be valid even after the Irish will is devised.

Essentially once the will is registered with the notaire, (will as a public instrument) it can only be superseded by another such will (inaccurate as civil law allows in theory for written and verbal wills but highly complex). Further for a foreign will to supersede a Spanish publicly registered will that possibility must (I think) be specifically noted within the will.

It is not possible in France to disinherit ones children and I don't think it is possible in Spain.

In short Person A is legally in the right and should fight his corner.
NOT LEGAL ADVICE
MM

maidhc

kbannon wrote:

If a person (Paddy) had property both here and in Spain and then made a will in Spain giving the property to pereson A (but not mentioning what would happen the Irish property). Then a few years later Paddy made out a will giving the property to their entire extended family (to be divided evenly).

The later Irish will can in principle revoke an earlier Spanish one. You would need to find out the exact situations where this can happen from a Spanish solicitor. It is becoming common practice for Irish solicitors to ask clients if they have a foreign will, and then work on that basis.

kbannon wrote:

However, it appears that because of various delays (mostly because despite one of Person A's parents being a co-executor to the estate and they refused to sign documents - to the extent that the estates solicitor threatened high court action against them) the Spanish authorities were not made aware of the Irish will (Paddy never told them!)

I'm confused here. A's parent, as executor, failed to proceed with the probate in Ireland? This should not have stopped the beneficiaries to the later Irish will from informing the Spanish authorities of the situation. Again, a Spanish solicitor would set out the precise steps in that jurisdiction. The solicitor for the beneficiaries may have questions to answer here for not adequately safeguarding his client's interests.

kbannon wrote:

Person A proceeded to have the Spanish property transferred into their name. The estate were unaware that Person A was processing the Spanish will.

What is the likely outcome from this? Is this a form of fraud? Could the estate sue Person A for the assets?

I would say yes. An executor cannot act in his own interests in administering the estate.

Seth Brundle

Person A's mother whilst acting as executor would deliberately stall matters using whatever tactics they could. The most common tactic was to delay signing documents for the estates solicitor.
The estates solicitor was about to notify the Spanish authorities when the latest news came - coincidentally when the other executor (who has been trying to have all matters processed by the book) is abroad on holidays!

maidhc

kbannon wrote:

Person A's mother whilst acting as executor would deliberately stall matters using whatever tactics they could. The most common tactic was to delay signing documents for the estates solicitor.
The estates solicitor was about to notify the Spanish authorities when the latest news came - coincidentally when the other executor (who has been trying to have all matters processed by the book) is abroad on holidays!

In that case:
1) The general rule is the "last will wins", so the irish will is valid. If so, A is not entitled to anything other than in the Irish will.
2) A, as executor abused their position by delaying the distribution of assets, presumably so they could effect a transfer of assets.
3) A can be sued, but it may also be possible to do things from the Spanish side, e.g., by having the transfer of property rescinded, and policemen with guns to remove what will then be trespassers. Again, a Spanish solicitor, or an Irish one with specialist knowledge will be needed here.
4) It is possible that the solicitor for the beneficiaries under the Irish will can be sued if he procrastinated too long.

Seth Brundle

Nice one!
I like the idea of spanish police brandishing guns!

mountainyman

maidhc wrote:

In that case:
1) The general rule is the "last will wins", so the irish will is valid. If so, A is not entitled to anything other than in the Irish will.

Poor reasoning.
The general rule in civil and common law countries is different.

Is A Paddy's child? If so he or she cannot be disinherited under Spanish Law.

Was the Spanish will registered? If so the Irish will may be treated as a mere holographic will and supercession of the Spanish will will be dificult (but not impossible).

Is the Spanish will specifically repealed in the Irish will? If not why not.

Was the Spanish will repealed? If not why not.

kbannon sounds like you are kidding yourself.

Once probate is gone it is gone.


MM

Is 'A' a child with a greedy extended family trying to cheat them?

Seth Brundle

A is the child of one of the executors, Paddy (the deceased) was their uncle.
I believe that the Spanish will was registered but Im not 100% sure. The Irish will makes no mention of the Spanish will - it is rather vague and states that the property is to be divided evenly amongst the beneficiaries.

A comes from a greedy family that prior to this spent their time squabbling amongst themselves over petty financial assets and have now united and taken to squabbling with their relatives.

(Just to point out - I get nothing from this will & sorry for deliberatley trying to avoid stating relationships, etc.)

mountainyman

I do not know the situation if the Spanish will has been probated. It may be possible to have the transfer rescinded; it may not.

If 'A' is not Paddy's child then he or she is not automatically entitled to 1/3, so the Irish will might be valid.

The law is highly confused.

[1] The Spanish accept the right of home country (Irish) law to override theirs

[2] We accept the right of the law where the property is situated to override ours.

The fact that the Spanish will is not revoked makes it possible that the Spanish will take the registered will (if any) as valid.

My understanding is that a non registered will in Spain has to specifically override a registered Spanish will.
I could be wrong

MM

Seth Brundle

Hmm thanks for the info - either way its going to be messy!
If only Paddy had sorted this (and other stuff) out before he died! The Spanish will only came to light when Person A's mother revealed it when Paddy was in James hospital hours from death!

Seth Brundle

Just an update on this:
Person A's parent who is an executor has managed to stall registering the will in Spain to allow Person a try and process the will there. However, due to outstanding tax liabilities, it is believed that the old will has not been processed fully.
The estates solicitors are seeking a response from A's parent on whether they wish to continue their duties as executor of the estate but it looks like a trip to the High Court to remove them will happen.
It also looks like the estates solicitors will insist on fraud charges being brought against Person A.
Thanks