THE WILL IN SPAIN

 

In this blog of Mercury Abogados we are going to focus on the types of the will in Spain that exist in the Spanish law and its requirements.

In the first place, the Will is an act by which a person disposes of all or part of his assets after his/her death.

Usually, it is possible to grant a Will about all those assets that are not expressly prohibited by law. In any case, citizens that are minors under the age of 14 cannot grant a Will and those who habitually or accidentally are not in their right mind. However, the Will that is granted before the mental alienation appears is valid.

Regarding the types of Wills in Spain, we must differentiate between common Wills and special Wills. The common can be an Holographic, open or closed. And the special Wills are the military, the maritime and the Wills that has been granted in a foreign country. However, in this Mercury Lawyers blog we will only focus on the common Wills.

 

HOLOGRAPHIC WILL:

The Spanish Will is called holograph when the testator writes it with his handwriting.

In order to be valid, the Spanish Will must meet the following requirements:

The Spanish will must be granted a person of legal age. 

The Spanish will must be written and signed by the testator, with expression of the year, month and day in which it is granted.

If it had words crossed out, amended or between lines, the testator will save them under his signature.

Foreigners may grant a holographic will in their own language.

 

OPEN WILL:

The open will is the most popular instrument. In this kind of Spanish Wills, the testator will express orally or in writing his/her last will to the Notary. And it will be the latter who draws up the Will according to the will of the testator.

This type of Spanish Will must meet the following requirements:

Express the place, year, month, day and time of its granting.

It will warn the testator of the right they have to read it for themselves. Afterwards, the Notary will read it aloud so that the testator may state whether he/she is in agreement with his/her will. If it is, it will be signed on the spot by the testator or a witness.

The Notary will vouch to know the testator or to have duly identified him/her. 

It will also state that, in his/her opinion, the testator has the legal capacity necessary to grant a will.

 

Two suitable witnesses must attend the act of granting:

A. When the testator declares that he does not know or cannot sign the will.

B. When the testator, although he/she may sign it, is blind or declares that he does not know or cannot read the will himself/herself. If the testator who did not know or could not read was completely deaf, the witnesses will read the will in the presence of the Notary and must declare that it coincides with the expressed will.

C. When the testator or the notary request it.

However, there are situations in which an open will can be made without the presence of a Notary:

 

1. Imminent danger of death: In the event that the testator is in imminent danger of death, the Will can be made before 5 suitable witnesses.

2. Epidemic: In this case, a Will can be granted before 3 witnesses over the age of 16.

 

The following cannot be witnesses in wills:

Minors, except in the event of an epidemic.

Those who do not understand the language of the testator.

Those who do not have the necessary discernment to carry out witness work.

 

The spouse or relatives within the fourth degree of consanguinity or second of affinity of the authorizing Notary and those who have an employment relationship with him.

CLOSED WILL:

The Will is closed when the testator, without revealing his/her last will, declares that it is contained in the document that he/she delivers to the Notary.

The requirements to be observed are the following:

It will have to be written.

If the testator writes it by his/her own handwriting, the testator will put his/her signature at the end.

If it were written by any mechanical means or by another person at the request of the testator, he/she will put his/her signature on all its pages and at the end of the Will.

When the testator does not know or cannot sign, he/she will do so at his/her request at the bottom and on all the sheets another person, expressing the cause of the impossibility.

In any case, before the signature the amended, crossed out or written between lines will be saved.

Do not hesitate to contact our Law Firm in Marbella if you have any questions about the Will in Spain. Also to advise you on any civil matter. Our experienced civil law attorneys would be happy to assist you.