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Bequeathing in times of epidemics

| News | Corporate Law and M&A

Ignacio Ariño analyses Article 701 of the Civil Code on the possibility of granting a will without the need to go to a notary

The World Health Organization (WHO) has stated that the coronavirus causing Covid-19 can be defined as a "pandemic". Among the many side effects that this may involve, some may be extreme as the declaration of the state of alarm by the Spanish government and that is why it is interesting to stop at the Civil Code provision of granting a will in times of civil epidemic that contains in its article 701, when dealing with the possibility of granting a will in times of epidemic.

This is an option that should be borne in mind, since this mechanism - well used - may be of interest given the risk to the health of third parties that would be involved in going to any notary's office or requiring the presence of a notary in the testator's home to grant an ordinary open will.

It should be noted that it is not by making a testator's will in this extraordinary form that we are doing something that does not admit of a return, but on the contrary, the Civil Code establishes in its article 703 that the will becomes ineffective two months after the epidemic has ceased if the testator survives.

Similarly, it becomes ineffective if within three months of the death of the testator the epidemic has not been brought before the competent court to have it notarized. Thus, with the judicial authentication of the will, the declaration of will made by the testator is homologated and gives his testamentary will the same value as if the will had been granted in the ordinary open form before a notary, being until then a will in the process of formation.

Once this exceptional probate form has been admitted, we must look at the requirements that must be met both for its intrinsic validity and for its subsequent judicial approval.

In the first place, the will must be granted as a single act, that is, avoiding interruptions that may alter the meaning of what is meant or that may influence the will of the person performing an act of such personal and patrimonial significance, correctly identifying the personal circumstances and those of the testator's filiation and marital status, as well as those of the witnesses who must attend in this case.

Secondly, it is necessary that his will be real and effective, in the sense that we are before a true declaration that cannot be replaced with incorrect allusions to the heirs or to the destination of the specific assets, but that it must be recognizable as such, ordering that it is that and not another will. Of course, this will, as expressed in this way, must respect the rules of inheritance law in order to avoid any later challenge, since a will that has been granted and approved by the courts can be challenged on the same grounds as an open will granted before a notary.

Finally, the presence of three witnesses over the age of 16 is required, who must also meet certain requirements of suitability as set out in the Civil Code itself, excluding, therefore, among others, established heirs or legatees and their relatives within the fourth degree of consanguinity or second degree of kinship.

Once these formal requirements have been met, the expression of the will to succeed must be expressed in writing if possible, so that this written form becomes a means of evidence of essential value for subsequent judicial approval, and this written document can be both holographic and typed.

Far from wanting this to be the form of evidence to which one can resort, its existence and regulation should be remembered, because the risk of an epidemic has always existed and the legislator in our centenary Civil Code had foreseen it, as well as many other institutions that, not for lack of use, can have their transcendence and usefulness at certain moments. 

You can read the article in El Economista

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