What risks does an heir assume when contesting an international will?

Introduction: When Inheritance Crosses Borders

International mobility has made commonplace what decades ago was exceptional: people with assets in different countries , dual nationality, or long-term residence outside of Spain.

In this context, what are colloquially called international wills introduce an additional level of complexity in the field of inheritance.

Challenging a will always involves uncertainty.

When the succession has international elements, the legal, economic and procedural risks intensify.

The heir who decides to go to court must consider not only whether there are grounds for annulment, but also what law governs the succession, what evidence will be necessary, and what consequences a possible dismissal may entail.

Legitimation and legitimate interest: the first legal barrier

The right to contest a will cannot be exercised by just anyone. Only those persons who have a legitimate interest in the inheritance are entitled to do so.

The Directorate General for Legal Security and Public Faith (formerly the Directorate General of Registries and Notaries) has reminded that the nullity of a will does not occur automatically, but at the request of an interested party.

This means that the heir must prove that the will legally prejudices them. Mere disagreement with the distribution is not enough. It is necessary to invoke a cause recognized by the applicable law: incapacity of the testator ( Articles 662 et seq. of the Civil Code), essential formal defects ( Articles 676 et seq.), defects of consent, or violation of the statutory share of the forced heirs ( Articles 806 et seq.).

In the international arena, even before entering into these cases, it is essential to determine which law governs the succession.

It may be Spanish law or a foreign law, depending on the habitual residence of the deceased or the national law chosen in accordance with the applicable rules of private international law.

If the heir bases his claim on precepts that do not govern the specific case, the action may fail due to an error in approach.

Nullity is not automatic: burden of proof and judicial declaration

One idea that should be discarded is that the will becomes ineffective as soon as an irregularity is detected by the heir.

The nullity must be declared judicially.

It does not operate automatically. This has been emphasized by administrative doctrine, which states that invalidity requires a challenge by anyone with a legitimate interest.

The practical consequence is clear: the heir bears the burden of proof . If they allege the testator's incapacity, they must prove it primarily with medical or expert reports. If they claim a violation of the statutory share, they must quantify the estate and demonstrate the harm caused.

In international successions, the test may extend to additional extremes.

When the applicable law is not Spanish law, it may be necessary to prove its content and validity.

Furthermore, if there are links with another State, the registration practice has required the provision of certificates of last will and testament from the corresponding country to prove whether there are testamentary provisions granted there.

The lack of this documentation may cause the registration of the inheritance to be suspended , which delays and complicates the procedure.

Can the testator prohibit the challenge?

In Spanish common law there is no express provision equivalent to article 423-18 of the Civil Code of Catalonia regarding the ineffectiveness of the condition of not challenging.

However, the majority doctrine understands that clauses that absolutely limit access to the courts or deprive the heir of exercising legally recognized actions must be interpreted restrictively, in consideration of the fundamental right to effective judicial protection ( Art. 24 of the Constitution ).

Therefore, although in common law there is no rule identical to the Catalan one, the heir is not automatically deprived of his right to challenge by the mere existence of a dissuasive clause.

However, this does not eliminate the risks arising from a possible procedural failure.

The economic risk in contesting international wills: additional costs and expenses

From an economic point of view, the challenge may involve a considerable outlay.

The general principle in civil proceedings is the imposition of costs on the party whose claims are substantially dismissed ( art. 394 LEC ).

The Supreme Court, in its Judgment 492/2019, of September 25, recalled that the dismissal of the appeal entails the condemnation to pay costs and the loss of the deposit constituted.

Although each case depends on its circumstances, the losing heir may be required to pay not only their own professional fees, but also those of the opposing party in accordance with the applicable procedural regulations.

In inheritance disputes with an international dimension , where experts, sworn translators and specialists in foreign law are involved, costs can increase significantly.

Furthermore, obtaining certificates abroad, their legalization or apostille, and the possible need for legal assistance in other countries involve additional expenses that must be considered before initiating legal action.

Procedural risk in contesting international wills: complexity and delay

Challenging an international will is rarely a simple procedure.

Determining the applicable law, proving its content when it is foreign, and coordinating with authorities in other states can prolong the process for years.

The need to provide certificates of last will and testament from the country whose law governs the succession , when applicable, is an example of how a documentary requirement can block registration and delay the adjudication of assets.

Added to this is the possible fragmentation of the litigation.

There may be parallel proceedings in different jurisdictions or difficulties in recognizing foreign judgments.

The heir must assume that the uncertainty is not only legal, but also temporal.

Consolidation of the contested situation

A less visible, but relevant, risk is that a final judgment of dismissal definitively consolidates the validity of the will.

If the heir has based his action on total nullity and this does not succeed, the testamentary distribution will be reinforced by a final judicial resolution.

The status of heir is not lost by the mere fact of contesting, but the avenue to question the distribution of the inheritance may be definitively closed, in addition to bearing the economic costs of the process.

Conclusion: technical analysis before litigation

Challenging an international will requires rigorous legal analysis.

The heir assumes legal risks (especially regarding standing and burden of proof), economic risks arising from the possible award of costs, and procedural risks linked to the documentary complexity and the cross-border dimension of the case.

The framework of the Spanish Civil Code offers instruments to protect the legitimate share and to sanction formal or material irregularities.

However, the nullity is not automatic and must be declared judicially.

In an international setting, every procedural decision has implications that transcend the purely patrimonial sphere.

Before contesting, the heir should ask themselves not only if the will seems unfair , but also if they have a solid legal basis, sufficient evidence, and the financial capacity to sustain a complex litigation.

In international inheritance matters, the right legal strategy can make the difference between a legitimate defense of rights and a long, costly and ultimately unsuccessful procedure.

RRYP Global, lawyers specializing in contesting international wills in Spain.