There are two categories of wills under Spanish law: common and special. Special wills are military, maritime, and ones executed in a foreign country, while common wills are open, closed, or holographic. This last type is the basis for this article, yet before expounding on it, a brief sketch of the other two types of common wills is useful. This article will not discuss special wills.
The most common type of will is an open will, as it is the most simple and requires only the presence of a notary public to record the testator’s intent in a public document. In certain cases, the presence of witnesses may be necessary, whether for the circumstances surrounding the testator (who, for instance, may not know how to or be able to sign the will), or for an express demand on the part of the testator or the Notary. Thus, because of their simple form, open wills are the most commonly used type in Spain.
Conversely, a closed will may be handwritten by the testator, in which case the testator’s signature is required at the end of the document. Alternatively, it may be drawn with any mechanical means or by a third party upon request of the testator, who must sign at the bottom of every page. This kind of will is placed in a closed and sealed cover that in no way permits it to be extracted or its seal to be broken. A Notary must then authorize this document in its sealed cover, declaring that inside the cover is the testator’s last will. The notary must also declare whether the testator wrote the will by hand or used either mechanical means or a third party to assist in drawing the will, making reference as well to the corresponding signatures, whether at the end of the document (if handwritten by the testator) or at the foot of each page (if assistance of mechanical means or a third party was used). The notary must then certify these declarations in an Act of Execution (Acta de Otorgamiento), with reference to the mark and the number of stamps on the cover as well as the testator’s capacity to grant the will. Closed wills are then submitted to their testators, who may themselves keep them, place them in the custody of a third party, or even entrust them to the notary who granted the Act of Execution, whereby the notary certifies the will.
Now that the principal features of open and closed wills have been outlined, this article will now focus on holographic wills. They do not require any formality, yet their requirements are mandatory, and the absence of any one requirement completely renders them null and void. This usually gives rise to many problems: as there is no requirement of notary assistance or any other type of consulting, a holographic will may overlook any of the requirements of the Spanish Civil Code regarding content or format, thus resulting in nullification. This is an inexpensive method, yet one that may result in great expense to its heirs. Since a holographic will makes no mention of testator capacity, the heirs may challenge it by questioning the testator’s capacity to grant a will, a process which may generate even more costs. In any case, a closer look at the requirements for granting a holographic will is worthwhile.
To grant a will of this kind, a testator must be of legal age and may not seek the assistance of third parties or other mechanical means to draft the will, as the law dictates it must written by the testator in his/her own writing, including the day, month, and year it was granted. The absence of any of these required elements will render a holographic will null and void. Likewise, a will containing words that are crossed out, added, or between lines that are not added by the testator with his/her signature will be null. The testator must include a signature in the margin next to any words crossed out or added to indicate consent. Evidently, what is sought to be avoided is a will that can be modified by third parties once it has been granted.
Holographic wills are very simple to grant and require no type of formality beyond the abovementioned elements. However, issues arise when it is time to validate the will upon the death of the testator. The will must be notarized at this time unless the will in question was previously validated by the Judge of First Instance (Juez de Primera Instancia) of the last residence of the testator. The document signed by the deceased must be presented to this Judge within five years of time of death, and it must be presented by the individual to whom it was entrusted or by an interested party, whether heir, legatee, executor, or any other interested individual. It is important to note that holographic testaments are invalid if they are not validated by the Judge within the designated time period.
If the will is sealed, the judge opens it upon receipt and initials all the pages. The testator’s identity is verified through recognition of the handwriting, which must be corroborated by three witnesses who can attest to the handwriting and signature of the testator. If the judge does not require witnesses or finds it advisable not to trust the testimony given, he/she may request a judicial authentication of handwriting. In this case, the testator’s survivorsspouse, descendents, or ancestorswill be summoned. Once the identity and validity of the will have been determined, the judge will order notarization of the will from the corresponding notary. This notarization will record the judicial proceedings that have taken place in order to determine the identity of the testator and the validity of the will. If the judge does not validate the will, the interested parties may take any corresponding legal action in response to this decision.
The major advantage with this type of will is that its provisions are kept secret, as the testator alone knows them and has no need to involve third parties in the process until after death.
Nevertheless, this type of will has many drawbacks; for instance, as noted from the outset, individuals who are less favoured in the provisions of the will may challenge the testator’s capacity at the time the holographic will was granted. Such a challenge will give rise to a judicial proceeding in which the parties will need to rely on expert witnesses to make statements regarding the testator’s capacity to grant the will. This kind of proceeding clearly increases costs. Moreover, at this stage, the parties are at the mercy of a judge’s final decision based upon the statements of witnesses and experts, thus it is a wholly subjective decision. This same problem does not arise with any of the other type of will, in which a notary will always declare that the person appearing before the notary has the capacity to grant the will. Even though the notary is making a subjective declaration (I hereby declare that the person before me possesses the capacity to grant this testament), it at least attaches a formality to the process that holographic wills lack.
In addition, issues may arise with the content of these wills: as there is no notary involvement, a testator unfamiliar with the rules regulating the content may make mistakes that effectively invalidate his/her last will and testament, for instance when legitime (forced shares of inheritance) is disregarded. This risk can also apply to closed wills, which are drafted without the involvement of a notary.
As we mentioned before, given the inherent simplicity of this type of will, the procedures that the heirs must follow for determining the validity and identity of the will and the testator are very arduous, complex, and above all, costly. Judicial intervention is necessary. The judge may make use of handwriting experts and a notary public. There is a risk that a judge may not deem the will valid.
In any case, the greatest risk is that this type of will may be destroyed by an individual disfavoured in the will provisions, or that the will is either lost or found after the statutory period of validity has expired.
The many risks assumed once this type of will is drafted make it unadvisable in practice. As previously noted, the one great advantagecosts to the testator asideis that its contents are kept secret. Closed wills handwritten by the testator provide this same benefit while not running any risk of loss, since closed wills are notarized and remain sealed and entrusted to the individual in their possession. Furthermore, as this type of will is closed before a notary public, the testator may inquire about its contents before it is sealed, thus avoiding any legal challenge to its validity due to content flaws. As discussed before, closed testaments also avoid the risk of controversy related to testator capacity at the time the will was granted.
In short, if a testator’s intent is to keep the contents of a will a secret, a closed will is always more desirable than a holographic will, and it is best to verify the contents of a closed will, prior to sealing the document, with the notary who will grant the Act of Execution.
This article is not considered as legal advice