The law in Gibraltar on all testamentary matters is set out in the Wills Act of 2009 which is based on the United Kingdom Wills Act 1963 and on the Gibraltar Administration of Estates Act 1933 as amended in1971 (the 1933 Act). The procedural rules for carrying the law into effect is contained in the English Non-Contentious Probate Rules 1987, as amended.

The estate of a deceased person is administered and passes on to the beneficiaries either under a will or, if there is no will, under the rules of intestacy as set out in the 1933 Act.  

Under the 1963 Act a will must be signed by the testator in the presence of two witnesses and in the presence of each other and the witnesses must also sign as witnesses. A beneficiary named in the will cannot be a witness. Oral wills, which are rare, can be valid in certain extreme cases. These are known as nuncupative wills. Hand written wills, also rare and known as holographic wills, can also be valid. However, there are strict rules governing the validity of such wills.  

Where the deceased dies testate, that is, having left a will, the persons named as Executors in the will need to seek a Grant of Probate in respect of the will from the Probate Registry of the Gibraltar Supreme Court. The procedure is an administrative one involving an application by the Executors to Court for aGrant. This must be supported by an affidavit or a Witness Statement by the Executors and an undertaking by them to collect all the assets of the deceased and distribute these in accordance with the terms of the will and to provide the Supreme Court, if required, with a full inventory and an account of the estate.

Gibraltar is one of the very few jurisdictions in the world, together with England, Wales and Northern Ireland, where there exists full and unrestricted freedom to dispose of one’s estate as the testator wishes. In most western countries there are strict rules requiring, for example, a fixed part of the estate to be left to the children of the deceased or to leave part of the estate to the surviving spouse merely as a life interest on trust for the children or issue of the deceased or, as under Sharia law, to leave specific amounts to different members of the family, often depending on gender and where parents and male heirs receive larger shares of the estate than the spouse of the deceased.

Not withstanding such freedom to dispose of one’s estate, a spouse or child of the testator who considers they have been unjustly left no part of the estate, may contest the will in Court which will decide whether to uphold the testator’s last wishes or not.

It is also sometimes necessary, in the case of a divided family in dispute with each other, to make an application for a Grant limited to the share a particular beneficiary may be entitled to in the estate, leaving the rest of the estate to be dealt with by the other beneficiaries.

In circumstances where property is owned jointly, the principle of survivorship will take effect upon the death of one joint owner and the surviving owner or owners will automatically become the sole surviving owner or owners of the joint property without the need for probate or any other legal formalities. It simplifies the transfer of ownership and ensures seamless continuation of property ownership. When a person dies without a will, the intestacy rules will determine the distribution of any property which is not owned jointly.

When a person dies without a will, the intestacy rules will determine the distribution of any property which is not owned jointly. An application must be made tot he Supreme Court for a Grant of Letters of Administration when the Court appoints one or more Administrators to administer the intestate estate. A priority list of persons entitled to apply is set out in the Non-Contentious Probate Rules 1987/2024. The first person entitled to a Grant is the spouse of the deceased or, of if there is no spouse, the children of the deceased and, if there are no children, the parents of the deceased and so on in descending order. The order of priority to inherit in an intestacy is the same as in the case for entitlement to apply for a Grant. However, failing any close family member who may be entitled, an application can be made either on behalf of Government claiming bona vacantia, that is, that there are no persons entitled to the estate and that the intestate estate should go into the public fund, or by a creditor of the estate.

The current law in Gibraltar on the distribution of an intestate estate is antiquated and can cause hardship in certain cases. This is contained in the 1933 Act as amended in 1971 following UK legislation as it existed at the time.  This sets out a list of persons entitled in descending order identical to the one allowing application for a Grant.  What is unfair and illogical is the proportions in which the estate needs to be divided.  

A surviving spouse receives only the first£150,000 of the estate.  This was last reviewed as long ago as 1999, twenty-four five years ago when, for example, property prices and the cost of living were much lower.

Of the residue, the children receive half absolutely. The other half goes to the surviving spouse, but this must be held upon trust for the benefit of the children and  cannot, therefore, be used enjoyed by the surviving spouse. Only the interest earned from the investment of such half is available to be used. In many cases, however, cases, this is insufficient to meet the basic needs of an elderly surviving spouse. On their death, the capital sum goes automatically to the children. This is particularly unfair when one considers that part of the capital will have been contributed to during the marriage by the surviving spouse.

Our laws urgently need to be brought up to date on a par with the UK where the surviving spouse receives the first £270,000 and half the residue absolutely to fully use and enjoy. The other half goes to the children.

It is sometimes necessary to consider situations when foreign laws need to be applied rather than Gibraltar law. Such situations will arise where a deceased has left the whole or part of his estate in a jurisdiction other than that of his domicile on death.  

A typical situation often arises in Gibraltar where a local person dies leaving a house in Spain. In such circumstances, as such estate consists of immovable property, Spanish law must be applied in collecting and distributing such estate.  

This will not be the case where the estate abroad consists of movable property, for example, money in a bank, when Gibraltar law must be applied.  

We can advise on all aspects of testamentary matters,  including the drawing up of wills and will trusts and codicils, obtaining Probate or Letters of Administration from the Supreme Court and the collection and distribution of the assets of the deceased, advising Executors and Administrators as to the extent of their duties and dealing with proceedings in Court on all matters of a contentious nature, including disputed wills, entering caveats, rights or priority of inheritors, distribution of assets, missing beneficiaries or the effect of competing testamentary external laws or jurisdictions and non-domiciled testators having assets in Gibraltar orGibraltar wills leaving part of an estate abroad.  

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There is no inheritance tax in Gibraltar and all testamentary dispositions may be received by inheritors free of Gibraltar tax.