The will is the act by which a person disposes, for after death, of all their assets, rights and obligations and through it, we will decide to whom and how we want all the wealth we have generated in life to pass.

We also recommend that you should not only make a will, but also modify it as your personal circumstances change. It is advisable to review the will every five or ten years to adapt it to our circumstances (inheritances, weddings, birth of children, separations, succession of a family business, large estates, etc.).

The testator has full freedom to testament, always respecting the legitimate rights of the forced heirs.

The Civil Code regulates inheritances and wills in articles 662 to 743.

Types of wills

In Spain, there are different types of wills, the choice of which depends on the personal circumstances of the testator and his or her civil status.

In most cases, Foral Law expressly refers to the Civil Code, but in the case of Catalonia, for example, wills made before witnesses are expressly prohibited.

For this reason, we approach this analysis from the point of view of the Civil Code (common law).

When making a will, we can choose the form of testament depending on different circumstances. The law establishes different types of wills:

1. Ordinary Wills

Ordinary wills are as follows:

a) Holographic will. - This is the will made in the testator's own handwriting, in accordance with the following characteristics:

1. To be of legal age.
2. It must be signed and with the day, month and year in which it is granted.
3. Words crossed out shall be saved by the testator with his signature.
4. If the testator is a foreigner, he may write it in his native language.

If it does not comply with the signature and requirements of the Civil Code, the will is null and void.

The time limit for notarisation of the holographic will is five years from the death of the testator, although the person in possession of a holographic will must present it to the competent notary within ten days of becoming aware of the testator's death,

b) Open will. - The testator expresses his last will before a notary. It may be made by persons over 14 years of age.

In the event that the person making the will is in the circumstances described below, he/she must attend the Notary to make an open will with two witnesses:

1. The testator declares that he/she does not know or cannot sign the will.
2. The testator, although able to sign, is blind or declares that he does not know or cannot read the will himself.
3. If the testator who cannot or cannot read is deaf, the witnesses shall read the will in the presence of the Notary and shall declare that it coincides with the will declared.
4. When the testator or the Notary so requests.

The notary not only confirms that the testator has the necessary legal capacity to execute the will, but also has the obligation to notify the Register of Last Wills of the execution of the will and its date.

c) Closed will. - The testator, without revealing what his last will is, declares that it is contained in a sealed envelope which he hands over to the notary.

The main characteristics of a closed will are as follows:

1. If it is written in the testator's own handwriting, the signature of the testator must be added at the end.
2. If it is typed or written by a third party, the testator must sign all the pages and the bottom of the will.
3. If the testator does not know how or is unable to sign, he shall sign at the bottom and on all the pages of the testament by another person, stating the reason for his inability to sign.
4. Before signing, any words that have been amended, crossed out or written between the lines, shall be saved.

2. Extraordinary Wills

These are wills that are granted in extraordinary situations and do not require the presence of a notary for their execution. They are the following:

a) Military testament. - Military personnel in campaign, volunteers, hostages, prisoners and other individuals employed in the army, or following the army, may make their wills before an officer of at least the rank of Captain.

If the testator is sick or wounded, he may make his will before the Chaplain or the medical officer who is assisting him. If he is on detachment, before the commander, even if he is a subaltern.

The presence of two suitable witnesses shall be required. This testament shall expire four months after the soldier has ceased to be in the field.

b) Maritime testament. - This is made on board a warship or merchant ship during a sea voyage. The notary is replaced by the person in command of the vessel. It is made by the Captain on a merchant ship and by the Accountant on a warship.

Two suitable witnesses must be present. This will expires four months after disembarkation.

c) Will made in imminent danger of death. - The testator in danger of death may make a will without the intervention of a notary in the presence of 5 suitable witnesses.

The witnesses must be of legal age and meet the conditions required by law to be considered suitable.

d) Will in case of epidemic. - A will can be granted without the presence of a notary in the presence of three witnesses over 16 years of age.

In order to be considered a pandemic, it must be declared by the World Health Organisation (WHO) and by the Spanish State, as occurred with the COVID-19 pandemic.

The conditions for being a suitable witness are as follows:

1. Obligation to know the testator.
2. They cannot be the heirs, legatees or spouse (if they are included in the will) or relatives of the heirs and legatees within the fourth degree of consanguinity or second degree by affinity.

The validity of such a will is limited to two months after the testator has emerged from danger of death or the pandemic has ceased.

e) Will made in a foreign country. - If the testator is outside Spain due to holidays or residence abroad, he/she may also grant a will in accordance with the rules of the country where he/she is.

In order for the will to be valid in Spain, it cannot be granted by two or more persons (joint will) even if this form is accepted in the country where the testator is located.

In the same way, an open or closed will can be granted before the Spanish Consul of the country where the testator is located. A Consul is empowered to act as a Notary.

Applicable legislation:

State: The Civil Code regulates inheritance and wills in articles 662 to 743.

Catalonia

• Regulations: Civil Code of Catalonia (Book IV, Title III).
• Particularities:
  
  • The fourth legitimate is recognised, less than in the Civil Code.
  • Greater freedom of testament.
  • Inheritance agreements are allowed.

Basque Country

• Legislation: Law 5/2015, of Basque Civil Law.
• Particularities:
  
  • Extended freedom of testament in some areas (Biscay).
  • Joint wills are allowed.

Galicia

• Regulations: Law 2/2006, of Galician Civil Law.
• Special features:
  
  • Joint wills permitted.
  • Freedom of testament with certain restrictions.

Navarre

• Regulations: Fuero Nuevo de Navarra.
• Special features:
  
  • Great freedom to dispose of property.
  • Institutions such as the ‘fiducia sucesoria’.

Aragon

• Regulations: Code of Foral Law of Aragon (Title VIII).
• Particularities:
  
  • Right to testament with greater freedom.
  • Joint wills are allowed.

Balearic Islands

• Regulations: Compilación del Derecho Civil de Baleares (Civil Law Compilation of the Balearic Islands).
• Special features:
  
  • Differences between Majorca, Minorca and Ibiza-Formentera.
  • Extended freedom of testament in some islands.

Source: www.blog.milcontratos.com

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https://www.milcontratos.com/documento-legal/testamento-olografo

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