Given the current circumstances and in the face of the health crisis caused by the Covid-19 and the future uncertainty, many citizens are concerned about their personal and financial situation because they do not have a will. Here we want to give reassuring guidelines for those who find themselves in that situation due to the exceptional circumstances and which are overwhelming us all. Due to the particularity of the circumstances we have to say that wills can be made fulfilling a series of conditions.
Wills without a notary and with witnesses
Article 701 of the Spanish Civil Code allows to make wills without a notary in case of an epidemic, as long as it is done before three witnesses over the age of sixteen. As is logical, these witnesses must understand the language of the testator, and must have the necessary capacity to carry out their witness work consisting of making sure what the testator’s will is and knowing how to transmit it, they must also know the testator and be sure of their ability to carry out the act to be carried out.
It is important to note that heirs and legatees, or their spouses, or their relatives, may not be witnesses within the fourth degree of consanguinity and second degree of affinity.
What is the procedure and deadlines for making a will?
As with any procedure, and despite the special circumstances of the state of alarm, there is a procedure for the execution of the will.
The will should be written whenever possible, and it will have value, although witnesses do not know how to write, as long as they go to the notary later. That is, it is normal that either the testator himself or one of the witnesses write the last wishes, but if circumstances prevent it, it will be worth it with the statements of the witnesses who can even record the testator in audio or video and take him later to the notary.
It is very important to respect the established deadlines and bear in mind that the will will be ineffective if two months pass after the testator has left the danger of death, or the epidemic has stopped.
In the case where the testator dies within said period, the will will also be ineffective, if within three months of death, the competent notary is not sought to formalize it and give legal certainty, regardless of whether it was made by written or verbal. This means that any will granted without the authorization of a notary will be ineffective, as it is not formalized as required by notarial legislation.
There is another possibility to grant a will without the intervention of the notary. It is the holographic will, a modality that can only be granted by people of legal age, and it is recommended that it be delivered to a person of absolute trust.
To be valid, this will must be written in handwriting, signed and dated by the testator, specifying the year, month, and day it is issued. If it contains words crossed out, amended or between lines, the testator must save them with his signature so that they are valid. This is important because if they were relevant and it does not, the will could be declared null and void.
In order for the holographic will to have value, it must be notarized, presenting it before the notary in the five years following the death of the testator, who will be the person responsible for issuing the protocol act in accordance with the notarial legislation.
The person who has a holographic will in his possession must present it before a competent notary within ten days following the day on which the testator’s death is known. Failure to comply with this duty will hold you responsible for any damages you may have caused.
This will may be presented by any person who has an interest in the will, such as heir, legatee, executor or in any other way. In addition, this type of will allows any foreign person to also make use of it by doing it in their own language.
However, it is recommended, whenever possible, to go to a notary to make a conventional will, since the holographic will can be lost or destroyed.