The law in Gibraltar on testamentary matters and the administration of estates is set out in the Wills Act 2009 and the Administration of Estates Act 1933, which follow the legislation that applies in England and Wales. The English and Welsh Non-Contentious Probate Rules 1987 are also applied in Gibraltar.1
Under the Wills Act 2009, a Gibraltar will is treated as properly executed if it is formally valid under the law of the place where it was executed, or the law of the deceased’s domicile, habitual residence or nationality, either at the time of making the will or at the time of death. There is, therefore, a strong presumption in favour of the formal validity of a Gibraltar will.
As in the UK, and subject to certain exceptions, the law of the testator’s domicile at the date of death governs the succession of movables, and the law of the place where the immovable property is situated governs the succession of immovables.
If an application has to be made to obtain a grant of probate in Gibraltar and the deceased is domiciled outside Gibraltar, an affidavit of law may be required to confirm the material validity of the will. Where a foreign-domiciled testator with an international estate that includes assets in Gibraltar has not taken specialist succession-planning advice, complications can arise, which may result in a more complicated probate application process and, inevitably, higher legal fees.
The UK connection
Given its long-standing connection with the UK, it is perhaps not surprising to find that some British nationals have assets in Gibraltar. In the 1980s and 1990s, it was not uncommon to place the ownership of a Spanish property in the name of a Gibraltar company to facilitate easier inheritance, with the Gibraltar situs shares passing on death and not the Spanish property. This is less common now, as the Spanish government has introduced a special tax payable by certain categories of companies, including Gibraltar companies, so corporate ownership is generally not as desirable, although corporate ownership is still seen.
If there are Gibraltar situs assets, it would be possible to put in place a Gibraltar will limited to those assets but, in many cases, the deceased may only have an English will covering their worldwide estate, or may have died intestate. If there is an English will and the executors have obtained a grant of probate in England, or, in the case of intestacy, where administrators have been identified and they have extracted letters of administration, an application can be made in Gibraltar to reseal that English grant under the Probates (Re-sealing) Act 1934. The application to reseal is usually more straightforward than an application for a Gibraltar grant of probate or letters of administration, although such an application would still be possible if there is no other grant. Of course, the resealing procedure would not be available if the UK grant is limited to assets in the UK.
Under s3(1) Probates (Re-sealing) Act 1934, the Supreme Court of Gibraltar will also reseal a grant or letters issued by a court of probate in a ‘British possession’. However, neither the Probates (Re-sealing) Act 1934 nor the Gibraltar Interpretation and General Clauses Act 1962 define this term. The Probate Registrar in Gibraltar has to look elsewhere for guidance, and the most logical starting point is the UK Interpretation Act 1978, which defines a ‘British possession’ as: ‘any part of Her Majesty’s dominions outside the United Kingdom; and, where parts of such dominions are under both a central and a local legislature, all parts under the central legislature are deemed, for the purposes of this definition, to be one British possession.’
This definition is wide and covers all countries and territories of which the Queen is monarch, except the UK. The reference to ‘Her Majesty’s dominions’ is not defined in the Interpretation Act 1978 but is understood to embrace all countries and territories of which the Queen is head of state. This will, therefore, include all the British overseas territories. In addition, it will include all the independent states of which the Queen is sovereign – i.e. Canada, Australia and New Zealand – and the territories where the Queen is the head of state, including Antigua, the Bahamas, Barbados, Belize, Christmas Island, Cocos (Keeling) Islands, Grenada, Jamaica, Norfolk Island, Papua New Guinea, St Christopher and Nevis, St Lucia, St Vincent and the Grenadines, the Solomon Islands, and Tuvalu.
Former states that now have their own monarch or have converted to a republic will therefore not be covered under the definition of ‘British possession’. So, for example, it is not possible to reseal a South African grant – application will instead have to be made for a Gibraltar grant of probate in order to deal with a Gibraltar bank account.
- 1By virtue of the Civil Procedure Rules, Part 57 practice direction, rule 1.2