BGI Spain - Francisco Lorenzo Martinez's interview - How to make a valid testament

Beyond the mere possibility, the moment deserves it.

The importance in the application of Regulation (EU) 650/2012 on international successions, succession within the EU.

We are currently facing a severe pandemic causing a disease known as Covid-19. As we know this disease in some cases can, unfortunately, lead to the fatal outcome of the death of a person, in this case, it must be checked whether or not we have a will and make sure of the consequences of the lack of it. A will is an essential act of the person and perhaps one of the most important because they will have effects on other people and their lives that we must ensure will not be a burden or an insufferable situation.

It is a matter of great importance, and which has been echoed by most of the media and experts in the field, commenting on the possibility of making a will under the Civil Code, availing themselves of the will in the event of an epidemic of art. 701 C.c. In effect, this rule authorizes the legal possibility of making a will, fulfilling certain requirements without the need to go to a Notary at the time of issue at the time of issuance.

However, it has not been noted that millions of foreign residents and non-residents live in Spain, to whom the current European legislation on successions first applies.

It is very important to know how it would affect the wills that are made in Spain, in this exceptional situation, by foreign citizens if they have not taken into account Regulation (EU) No. 650/2012 of the European Parliament and of the Council, of the 4th of July 2012, relating to jurisdiction, applicable law, recognition and enforcement of decisions, acceptance and enforcement of public documents regarding mortis causa inheritance and the creation of a European certificate of succession.

This European rule of preferential application in our legal system and of a universal nature, applies to any person who resides or is regularly in Spain regardless of whether or not they have the nationality of an EU Member State.

As an example of the vital importance of this European rule, is that the aforementioned Regulation establishes the testator's right to choose the law that will govern his will and succession. This right can be enormously important given that each foreign legal system has a tradition and rules that are very different from Spanish law when it comes to appointing heirs and how the inheritance will be divided between them. In other words, there are foreign laws that do not restrict freedom to make a will in any way. Suffice it to cite, for example, the absence of the institution of the legitimate force of descendants in legal systems such as the British.

This European regulation and that governs in Spain above our Civil Code with a universal character must be taken into account when making a will beforehand if due to the Covid-19 pandemic, a foreign national, in the absence of a will, I decide to do so.

Balms Abogados and its team of Lawyers specialized in Successions and Inheritances, responding to many questions and doubts from our foreign community and non-community clients who reside in Spain and, concerned about the current situation, offers legal guidance on how to make a will simply and validly for the protection of your interests and those of your family.

Taking into account the implications of European regulation and the rights it recognizes, every person in question may, in compliance with the formalities of Spanish law, make a will in two ways:

1.- Epidemic will

It is the will in case of an epidemic, being necessary for its validity to do it preferably in writing and with the sole presence of three witnesses older than 16 years. Witnesses must understand the language and cannot be the instituted heirs or legatees, their spouses, or relatives of those.

Once the current epidemic has ended, and in the two subsequent months without the testator's death, the will will no longer be valid automatically.

In the event of death, the will must be brought to a Notary within the following 3 months so that it remains fully valid.

2.- Holographic will

It is the testament written by the testator in his handwriting, that is, manuscript. It must contain the date and signature of the testator, not being valid to write it by mechanical means or computer. It should not have any deletion. Must be notified before a Notary within 5 years.

In these cases, supervision and legal advice on the form and content of the will are advised to guarantee the effectiveness of what is available and that the will of the testator is carried out. It is necessary to take into account the EU regulation and make the will correctly, avoiding problems for the family and the heirs.

From Balms Abogados, experts in Succession and Inheritance Lawyers, we are at your disposal to resolve any doubt or question.

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