眾律國際法律事務所

Types of wills in Spain

In accordance to Spanish Civil Code, Spanish wills may be common or special. The special ones are: military will maritime will and the will made in a foreign country. The common ones are: holographic, open and closed will.

Holographic will

A holographic will (testamento ológrafo) must be written entirely in the handwriting of the testator and shall be dated and signed by him or her in every page of the will. It must also be clearly drafted in order to ensure that the testator’s wishes are absolutely clear. No other formalities or witnesses are required.

On the death of the testator, it must be verified as genuine before a judge and the decedent’s handwriting is required to be authenticated by witnesses, who are the decedent’s closest relatives. Once it is verified, the judge will enforce the will’s contents.

Open will

Open will (testamento abierto) is the most common and suitable form of will for most people in Spain and it is a recorder document which contains the testator’s intentions as declared in the presence of a Notary Public.  Before a Notary Public the testator shall express, orally or in writing his last will to him. The Notary may request the presence of two witnesses, who must also be required in case the testator is blind or illiterate.

According to Article 681 of the Spanish Civil Code the following persons may not act as witnesses in wills:

• People who are less than sixteen years old
• Blind persons and wholly deaf or mute persons
• Persons who do not understand the testator’s language
• Persons who are of unsound mind
• The spouse or relatives within the fourth degree of consanguinity or the second degree of affinity of the authorising Notary Public and persons who have an employment relationship with him.

Upon the Notary’s drafting, the will in accordance to the testator’s statements shall express the place, year, month, date and time of its execution. Also, the Notary shall read it out loud for the testator to declare whether it conforms to his intentions or not. After, the document shall be signed by the testator and by the witnesses (if there are any).

The Notary will give the testator a copy and send another one to the General Registry of Wills (Registro General de Actos de Última Voluntad). The original copy shall remain at the notary’s office.

Closed will (secret will)

A closed will’s (testamento cerrado) contents remain secret by placing them in a closed envelope.  It must be written be written by the testator’s in his own hand, and he shall sign at the end of it. In case it is written by mechanical means or by another person, the testator shall sign in every page. The envelope shall be handed to the Notary Public and declare before him:

• that the provisions of the will are contained in the envelope;
• whether it has been written by a third person or by the own testator;
• whether it has been signed by a third person or by the testator.

After that, the Notary will authorise with his stamp and sign the envelope, file it and send a notification of the will to the Central Registry of Spanish Wills.

This form of will is rarely used in Spain.

In all cases, if the formalities are not followed, the will shall be declared null and void as a result of not observing the solemnities and the intestate succession shall occur.

References:

Spanish Civil Code

(Translation: http://www.wipo.int/wipolex/en/text.jsp?file_id=221319)