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Partner Elliott Phillips and Associate Simon Everington detail the rules surrounding the recognition of foreign wills and intestacy in Gibraltar, and discuss how the legislative regime may soon be changing, allowing for the witnessing of wills by videoconference, in STEP Journal Plus.

Elliott and Simon’s ‘Rules of the rock’ article was published in STEP Journal Plus, November 2020, and can be found here.

Testamentary freedom and the intestacy regime

Like England and Wales, Gibraltar adopts the principle of testamentary freedom: the right to choose what to leave, to whom and under what contingencies. To formally exercise that freedom in relation to assets in Gibraltar, it is necessary to execute a valid will, whether foreign or Gibraltarian. Otherwise, the Gibraltarian assets automatically pass on the testator’s death, in accordance with the rules of intestacy set out in s.51 of Gibraltar’s Administration of Estates Act 1933. These differ somewhat from the intestacy rules in England, so should be read carefully. Intestacy rules are a necessary but blunt tool, often at odds with a person’s true testamentary wishes. Hence the importance of executing a will.

Recognition of foreign wills in Gibraltar

Under Gibraltar law, foreign wills are recognised where their execution conforms to the laws of the jurisdiction:

• where they were executed;
• in which the testator was domiciled or habitually resident; or
• of which the testator was a national at the time of execution or death.

Where a foreign will is valid and covers immovable or movable assets in Gibraltar that are subject to probate, those assets pass in accordance with the provisions under that will.

Where the relevant law is English, for example, the formalities for creating a will are set out in the Wills Act 1837 (the 1837 Act). Note that the legislation in England has recently changed in light of the restrictions on movement many have faced during the COVID-19 pandemic. On 28 September 2020, the amendments to the 1837 Act came into effect, in the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020, which allows for the witnessing of a will by ‘videoconferencing or other visual transmission’ (for example, using popular tools like Zoom and Skype) as an alternative to the physical witnessing of wills.

However, as video witnessing presents a number of its own challenges, the UK Ministry of Justice has emphasised that it should be used only as a last resort when the testator is unable to meet people outside of their household. Importantly, the amendment has retrospective effect, applying to English wills created from 31 January 2020 and will remain in place until January 2022.

Gibraltar wills: requirements for validity

Alternatively, the requisite formalities for a Gibraltar will are set out in the Gibraltar Wills Act 2009 (the 2009 Act), which essentially repeats those set out in the 1837 Act, namely:

• the testator must be 18 years of age;
• the will must be in writing;
• it must be signed by the testator or by some other person in their presence and by their direction;
• it must appear that the testator intended by their signature to give effect to the will;
• the testator’s signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
• each witness must attest and sign the will or acknowledge their signature in the presence of the testator (but not necessarily in the presence of any other witness).

There is no requirement for a Gibraltar will to include an attestation clause. Further, a less stringent regime applies for soldiers (including members of the UK Royal Navy, Royal Marines or Royal Air Force) in actual military service and any mariner or seaman at sea.

Gibraltar is also following in England’s footsteps, as a review of the 2009 Act is currently underway, with the intention of bringing in a similar legislative amendment to allow for remote witnessing of wills via videoconferencing methods. It will be interesting to see how closely Gibraltar follows England in this regard. For now, however, until any amendment takes effect, ‘presence’ for the purpose of witnessing Gibraltar wills must still be physical so any Gibraltar will that is purportedly witnessed by video will be invalid.

In addition to the above formalities (and as with English wills) in order for a Gibraltar will to be valid:

• the testator must have testamentary capacity at the time;2
• the testator must know of and approve the contents of the will;
• the testator must not have been unduly influenced into executing the will; and
• the will must not be forged.

A Gibraltar will may apply to the testator’s worldwide assets, although it is often advisable to have individual wills for each jurisdiction in which assets are held.

Failing gifts and revocation

Gibraltar wills are subject to the same regime as English wills on the issue of failing gifts and revocation, namely:

• Testamentary gifts to an attesting witness or to the spouse of that witness are void.
• Where a testator divorces or has their marriage or civil partnership annulled after executing a will, any gifts under that will to their spouse will lapse. If the will appoints that spouse as executor or trustee, that appointment will not take effect (unless the will indicates a contrary intention).
• Where a child or more remote issue is a beneficiary but predeceases the testator, leaving their own descendants who are alive at the time of the testator’s death, the relevant gift will pass to those descendants in equal shares (unless the will indicates a contrary intention).
• A Gibraltar will is revoked where the testator:
• subsequently marries or enters into a civil partnership (unless the will was made in the contemplation of that marriage or civil partnership);
• intentionally destroys the will;
• makes a new will (or codicil) that expressly revokes a previous will; or
• makes a written declaration stating their wish to revoke the will.

Notwithstanding the principle of testamentary freedom, if a person dies domiciled in Gibraltar, the estate is vulnerable to a claim for reasonable financial provision where the will (or, in its absence, the intestacy rules) fails to provide this. Those eligible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1977 (the 1977 Act), which essentially adopts the same provisions as its English namesake of 1975, include the deceased’s spouse, former spouse who has not remarried, child, any person treated as a child of the family or any person who immediately before the deceased’s death was being maintained by the deceased. Except with the permission of the court, the claim must be made within six months from the date on which the grant of representation is taken out by the personal representatives.

If the claim succeeds, the court has the power to make various orders, including for a lump sum or periodical payments to be paid out of the estate, or for a property held in the estate to be transferred, to the successful claimant. Such claims can delay the administration of the estate and, if successful, can significantly deplete its value. Accordingly, it is always advisable for a testator to prepare a letter of wishes alongside their will, especially where the testator leaves little or nothing under their will to those who might otherwise have the right under the 1977 Act to seek reasonable financial provision.