A Question About A Letter Of Wishes

[BarnaWill]

I live in Barcelona, Spain, with my Spanish wife. We have two small children.
They are currently Spanish citizens, with Spanish passports.
I have not yet got round to getting them UK passports; having investigated this I know there is no hurry - I can get them whenever I want, since I was married to their mother before their births.

In the event of our deaths, we know that we would like them to share their time between the UK and Spain. I have a big family (many siblings) in London, and she has family in Barcelona. Probably, they would go to school and live in the UK but spend many if not all of their holidays in Spain.

We have spoken to both families we have chosen (my sister in London, her brother in Barcelona) to look after them (shared guardianship, if you will) and both are willing to fulfill their obligation in the hopefully unlikely event of our deaths.

Currently there is no proof of our wishes, legal or otherwise. I am thinking of writing a letter of wishes, in both languages, signed by everybody involved.
My question is this: would this have any legal standing at all in the event of any legal challenges to guardianship? God forbid it would come to that but I am interested as to whether or not a letter of wishes, in good English and Spanish but not prepared by a lawyer would be a valid document in the eyes of any future legal judgement.

Any thoughts?

[I know that the passport situation is tricky. The UK has no problem with its citizens having dual passports, but if the Spanish system ever found out they had dual passports (which they don't yet have, but will one day) their Spanish passports would be withdrawn - which I believe is technically against EU law but hey ho).]

[FredPuli43]

Any realty (land, buildings, houses etc) is governed by Spanish law and you should make a Will in accordance with Spanish law to dictate what happens to it. Anything else is governed by any English will you happen to have made; realty is passed under the law of the country in which it lies, under the principles of Comparative Laws, regardless of what any Will made under some other country's law says.Thus my father's property in France did not pass under his English Will but under French law of intestacy, he having made no French will. I am not presently aware of any EU laws, protocols, or conventions which alter this.

As to a letter of wishes, it doesn't have any more standing in English law than any other statement. To have legal effect on death it must be expressed in formal terms in an English will, drawn, signed, and witnessed in accordance with English law. Now, I am not familiar with the Spanish law on wills. It may be that such a document as you describe would have effect under the law there, though it doesn't seeem likely at first blush. I would think that Spanish law provides that such an important matter as guardianship of minors on the death of parents would require a declaration in a Will, but I am not able to give a definitive answer, and you should ask a Spanish lawyer.

[EDDIE51]

With regard to the 'guardianship' of children the fundamental principle of the UK family court is to do whatever is in the 'Best Interests' of the child/children. That overrides anything else. A child of 10 or over can be asked what they want to happen, under that the court decides for them.

[bednobs]

i agree - you can't leave children in a will anyway

[EDDIE51]

If you and your partner die while the children are resident in Spain it will be Spanish law that applies. UK law would not come into it

[FredPuli43]

There's a bit more to it than that, Eddie. The question of domicil comes into it, not just residence. After all, someone may be resident in two countries or more, and, indeed, taxable in more than one.

The domicil of a child is that of its father. The father's domicil is either his domicil of origin viz that which had at birth, or his domicil of choice viz. that of whatever country he has shown a fixed and settled intention of living in permanently until death