(Last Updated On: 20th April 2020)

Continuing my series of posts related to English and Spanish wills and succession topics, today I look at testamentary gifts from a multijurisdictional perspective. In this article, I provide an explanation of gifts under English law, followed by an explanation of gifts under Spanish law, with the aim of showing any similarities and differences.

Bear in mind that

  • ‘English’ refers to concepts, language, texts, etc. from England and Wales only, as opposed to other jurisdictions where they may exist or apply.
  • ‘Spanish’ refers to concepts, language, texts, etc. from Spain’s derecho común (subject to the Civil Code) only, and doesn’t include the local laws of specific regions.

Testamentary gifts in English law

‘Testamentary gift’ is the general legal term used to refer to a gift made in a will. Depending on what is being gifted, a gift will be referred to as ‘legacy’, ‘devise’ or ‘bequest’, accordingly.

A legacy is a gift of personal property or money, also called ‘personalty’. Sometimes, it is also used to mean any gift by will.

A devise is a gift of real property, also called ’realty’.

A bequest is a gift of personal property, usually excluding money.

☛A quick reminder about the types of property:

‘Personal property’ refers to movable assets, such as vehicles or furniture.

‘Real property’ refers to immovable assets, such as a freehold property.

Leaseholds are personal property, but due to their relationship with real property, leasehold rights are sometimes known as ‘chattels real’.

Classification of testamentary gifts

Gifts are classified into different types or categories. There are strict rules which apply in relation to how gifts may fail (I will discuss this topic in a future article), to income and interest, and to expenses. Therefore, knowing this classification is very important for English lawyers.

Specific, general or demonstrative gifts

Specific gifts are gifts of particular things owned by the person making a will (testator).

Examples: ‘I leave my BMW car to A
I leave my 100 ordinary shares in XX plc to A

General gifts are gifts of things or money which aren’t expressed as owned by the testator.

Examples: ‘I leave a BMW car to A
I leave 100 ordinary shares in XX plc to A

Demonstrative gifts are gifts of general nature but expressed as to be paid from a specific fund.

Example: ‘I leave £100 out of my account at HSBC

Pecuniary gifts

They are gifts of money, and are usually general but can also be specific or demonstrative.

Examples: ‘I leave £100 to A’ (general)
I leave the £100 B owes me to A’ (specific)
I leave £100 out of my bank account at HSBC’ (demonstrative)

Residuary gifts

They are gifts of everything remaining after paying debts and other legacies.

Vested or contingent gifts

Vested gifts are gifts which are not subject to a condition being met.

Example: ‘I give my car to A’.

Contingent gifts are gifts which are subject to a condition being met.

Example: ‘I give my car to A, if he reaches the age of 21’.

Class gifts

Class gifts are defined in Black’s Law Dictionary (9th Edition) as

A gift to a group of persons, uncertain in number at the time of the gift but to be ascertained at a future time, who are all to take in definite proportions, the share of each being dependent on the ultimate number in the group.

Testamentary gifts in Spanish law

A legado (gift) is such a complex concept that the Spanish Civil Code does not provide a definition. Article 660 simply provides that heredero (heir) is the person entitled to an entire estate or a proportional share thereof (sucesor a título universal), and legatario is the person entitled to a specific testamentary gift (sucessor a título particular).

There are many types of legados and the Spanish Civil Code only regulates the most common ones, usually referred to as típicos, as opposed to legados atípicos (not regulated by the civil Code).

This article offers a simple general overview of the most common gifts in Spanish law in a hierarchical structure, as a starting point for further research.

Regarding conditions and obligations, gifts can be puros, condicionales or a término and modales.

Legados puros are gifts not subject to a condition or term.

Legados condicionales or a término are gifts subject to a condition (condición) or term (término).

Legados modales are gifts which impose an obligation on the legatee.

A testator can use legados to give things (cosas) or rights (derechos), and can be classified into a wide range of categories, depending on the aim of the gift (what is given and for what purpose).

Legados de cosas can be legados de cosa específica (specific legacy of particular things), legados de cosa genérica (general legacy), and legados de prestaciones periódicas (legacy requiring periodic performance).

Legados de cosa específica (specific legacy of particular things) can be

  • legados de cosa propia del testador (legacy of property belonging to the testator);
  • legados de cosa ajena (legacy of an asset not owned by the testator at the time of his death);
  • legados alternativos (alternative legacy), where two or more things are offered, but only one will be chosen; and
  • legados de cosa gravada (legacy of encumbered property).

Legados de cosa genérica (general legacy) include gifts of movable and immovable property:

  • Legados de género refers to gifts of non-specific things which are included in a specific type, according to their nature.
  • Legados de cantidad refers to gifts where the thing gifted is established by their number or amount.

Legados de prestaciones periódicas (legacy requiring periodic performance) can be

  • legados de pensión (legacy of periodic income); and
  • legados de alimentos (legacy of maintenance), which include legados de educación (legacy of educational expenses).

Legados de derechos can be

  • legados de crédito (legacy of creditor rights),
  • legados de liberación (legacy granting debt relief), and
  • legados de deuda (legacy in the amount of a debt owed).
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IRENE CORCHADO RESMELLA is a Spanish translator based in Edinburgh. A Chartered Linguist and member of the CIOL, she is also an English-Spanish sworn translator appointed by the Spanish Ministry of Foreign Affairs. Irene specialises in sworn and legal translation (particularly in wills and succession) and is an Affiliate member of STEP. ICR Translations is registered with the Information Commissioner's Office and has professional indemnity insurance.

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