Contesting A Spanish Will

Published on 07/07/2011 in Expat Life

During the past few years we have received several enquiries in relation to the possibility of revoking a Spanish Will due to the lack of capacity of the testator or testatrix.

This can occur when the testator is an elderly person living alone who can be conditioned or influenced by third parties.

In this regard we can advise that within the Spanish legal system several Spanish Court precedents are already established, meaning that it is potentially possible to revoke a will due to lack of capacity of the testator.

We should remember that the starting point is the presumption of the testator’s capacity to make a will, and the presumption in favour of the will, which means that in principle it will be acknowledged that the Will is valid and the testator had the capacity to grant it, unless proven otherwise.

WillThus it is assumed that the testator had capacity to grant the Will, and therefore the person contesting the Will based on the lack of mental capacity of the testator, must prove in an unequivocal and conclusive way the lack of mental capacity of the testator at the time of granting the Will.

It will therefore need to be proven that the incapacity or mental condition was severe and the proof must be clear, evident and not simply based on assumptions or speculation.

In these cases medical reports are extremely relevant as they could help to determine the then mental capacity of the testator.

So, what is really important is to be able to prove the mental capacity of the testator at the time of granting the Will, not before and not after, and it must be determined, as a fact, if the Will was enacted under legal mental capacity or not. It is very important to scientifically determine the capacity or non capacity of the testator by means of medical reports as previously stated, and any other kinds of expert reports or evidence could also be accepted.

The level of difficulty of the Will could also be relevant when trying to determine the sufficient mental capacity of the testator.

Because a greater mental ability is required to deal with a complex Will where tangled divisions of the assets, elaborate mathematic calculations and complicated appointment of the Executors, and so on, are needed.

On the other hand, in the case of those Wills granted in front of a Public Notary (as are the majority of the Spanish Wills) the Notary states that according to his or her knowledge the testator has the sufficient mental capacity to grant it. But this judgement of the Notary about the testators capacity can be refuted (iuris tantum), so a proof of the contrary can be accepted by the Courts. In this sense the Court can deem that the assessments of the Notary were wrong, and if so it could agree to void the testamentary dispositions granted.

The information provided on this article is not intended to be legal advice, but merely conveys general information related to legal issues.

Written by: White & Baos Lawyers

About the author:

White & Baos is a law firm established by Spanish and UK lawyers, and is regulated by the Law Society of England & Wales as well as the Spanish regional equivalent, the Colegio de Abogados in Alicante.  They are one of Eye on Spain's few recommended lawyers.

Calle Diana No. 19. 2º-D, 03700 Denia, Alicante
Tel.: +34 966 426 185
Fax.: +34 965 784 471

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