Last will in Spain

Holographic Will in Spain

In Spain, it is rather uncommon for a will to be written holographically, i.e., to be handwritten. Although this type of will is the simplest way for the testator to document their final wishes, it simultaneously creates a significant additional burden for the heirs. The reason is that such a will must be validated by a court to become legally binding. This means that a judge must examine and authenticate the handwriting of the author, i.e., the testator. Yet the judge’s protocol can only establish whether the handwriting matches that of the testator and does not preclude a future court case.

How Must a Holographic Will be Drafted?

The will must be entirely handwritten and signed by the testator. A typewritten document is invalid ‒ even when signed. The testator is also not allowed to authorise anyone else to write the will on their behalf. Additionally, the author of a holographic will must be of legal age. It is also mandatory for the document to include the precise date of its drafting – year, month, and day. Without this date or in the event when the date is incomplete, the will loses its validity. A holographic will does not have to be written in a single step; the author may compose it over several days. Any amendments or additions to the will must be signed by the author. If this signature is missing or the changes significantly contradict the original wishes of the testator, the entire will loses its validity. So as to avoid formal errors, it is advisable to refrain from any deletions or corrections.

Open Will

An open will is the most common form of will in Spain. It is drafted in the presence of and authenticated by a notary. The notable characteristic of this type of will is that it can either be delivered orally or submitted in writing. If the will is delivered orally, it is put on paper by the notary and read to the testator for correction. The notary is also required to verify the testator’s identity and testamentary capacity. The testator then receives one copy of the will, while the original is kept by the notary. The notary then informs the Central Registry of Wills in Madrid about the will, whereas this is not mandatory for its validity.

Closed Will

A closed will is usually handwritten by the testator but may also be written by another person, in which case the testator must sign each page. The closed envelope containing such a will is handed over to the notary, who seals and registers it. The unique characteristic of this type of will is that its contents are kept confidential even from the notary. Upon receiving the sealed will, the notary must authenticate the identity and legal capacity of the testator. If no doubts arise, the notary certifies the sealed will by placing the notarial certificate directly on the envelope. The original either remains with the notary or is returned to the testator or a trusted person. After the testator’s death, the will must be examined by the appointed notary.

Last Will in the Event of Imminent Danger to Life

If the testator’s life is in acute danger and no notary is available, a will may be drawn up orally in the presence of five suitable witnesses. These witnesses must know the testator and must not be barred from testifying. This type of will loses its validity after two months if the testator does not die within this period or if the will is not submitted to court within three months of the testator’s death.

Is it Possible to Have a Joint Will as is the Case in Germany?

A joint will written by several individuals as a group is generally inadmissible under Spanish law, with the exception of certain regions, such as Aragon, Navarre, Catalonia, and the Basque Country. Inheritance contracts whereby the heirs and the testator sign an agreement regarding the estate are equally inadmissible in Spain under general Spanish law ‒ with the exception of some autonomous municipalities.

Recognition of Wills from Other Countries

A written will or inheritance contract drawn up in a different country is valid in Spain if it complies with the formal requirements of the respective country. This also applies to the wills which meet the formal requirements of the country whose national the testator or any of the interested persons were at the time the will was drafted or at the time of the testator’s death; and it similarly applies to the wills which meet the formal requirements of the country in which the testator was domiciled or habitually resident.

Att. Prof.* Dr. Stephan J. Lang