Discover everything you need to know about wills under the Catalan Civil Code, from their definition to the various forms they can take and the legal conditions that apply. This article walks you through the essential aspects, including the circumstances that may affect the validity of a will, such as marital breakdown or the end of a cohabiting relationship.
I.- WHAT IS A WILL
A will, by definition, is a unilateral expression of intent by which the testator sets out how their assets are to be dealt with after their death, and where applicable, establishes provisions of a financial or non-financial nature.
Article 421-2 of the Catalan Civil Code (hereinafter CCCat) governs this by providing: "In a will, the deceased orders their succession by appointing one or more heirs and may establish legacies and other dispositions to take effect after their death."
II.- REQUIREMENTS OF A VALID WILL
Every will must therefore designate an heir; failure to do so will render the will null and void, except in Tortosa or where a universal executor has been appointed. Article 422-1-3 of the Catalan Civil Code (CCCat) provides that wills which do not contain the appointment of an heir are null and void, unless they include the appointment of a universal executor or are made by a person subject to the law of Tortosa.
The existence of a will means that the succession is testate and, accordingly, once the estate is opened, the wishes of the testator as expressed in the last validly executed will must be respected. Article 421-1 CCCat provides that testate succession is governed by the wishes of the deceased as expressed in a will executed in accordance with the law.
A will is, above all, a legal act which, as such, will be null and void where any of its essential elements are absent or where it conflicts with a mandatory or prohibitive rule of law.
III.- WHEN IS A WILL NULL AND VOID?
However, a will that is null and void or has become ineffective due to the absence of an appointment of heir may still take effect as a codicil if it meets the relevant requirements. A codicil is a legal act very similar to a will, designed primarily to preserve the effectiveness of a will that does not appoint an heir.
A will is null and void if it was made under deception, violence, or serious intimidation, as these constitute defects of consent that render it ineffective.
A will is also null and void if it does not correspond to any of the types recognised under the legal system, or if it fails to meet the required capacity or formal requirements.
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IV.- CAPACITY REQUIREMENTS FOR MAKING A WILL
Under Articles 421-3 and 421-4 of the Catalan Civil Code (CCCat), the capacity requirements are having natural capacity and being at least 14 years of age, except in the case of a holographic will, for which the testator must be at least 18 years old.
V.- FORMS OF WILL: VALID TYPES OF TESTAMENT
The forms of will recognised under Catalan law are the open notarial will, the closed notarial will, and the holographic will.
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Open Notarial Will
This is the type of will executed before a notary, designating the beneficiaries and setting out how the estate is to be distributed. It is advisable to seek legal advice beforehand in order to determine the most appropriate way to divide the assets.
In any will, the testator is free to leave their assets to whomever they choose and in whatever manner they see fit, subject only to the statutory limits imposed by forced heirship rules (legítimas).
In an open will, the notary will assess whether the person wishing to make the will has the requisite mental capacity to do so, forming a judgement by asking a range of general questions designed to evaluate their mental state.
This is the most common form of will.
It is not strictly necessary for the testator to attend the notary with two witnesses for an open will to be fully valid; however, having witnesses present is advisable where the testator's mental capacity may later be called into question.
This type of will offers the greatest security in terms of proving its existence and contents, as the authorising notary will register it with the Registry of Last Wills and Testaments and retain the official protocol along with its full contents.
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Holographic Will
A holographic will is one that is handwritten, dated, and signed on every page, and then typically kept in a drawer.
For this type of will to be valid, the person signing it must be of legal age.
As it is not executed before a notary, there is a risk that no one will know of its existence, unlike an open will, it will not have been registered in any official registry.
Once the testator has passed away, the process of opening the estate under a holographic will becomes more complex, as its authenticity and validity must be proven, a process that involves additional costs and delays.
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Closed Notarial Will
This is a will that is drawn up in writing, it does not need to be handwritten, and is deposited in a sealed envelope before a notary. Like an open notarial will, it carries all the associated legal guarantees; however, unlike an open notarial will, the notary is not privy to the contents of the will and has no knowledge of them whatsoever, as the document is handed to the notary in a sealed envelope with a declaration that the testator's will is contained within.
The notary must draw up a record confirming that the testator has executed a closed will.
To open it, the presence of two witnesses will be required, once the person has passed away.
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VI.- HOW A WILL MUST BE INTERPRETED
The testator's wishes must be expressed in the will clearly and concisely. Where ambiguous or obscure clauses exist, the law provides that the interpretation of a will must seek to reflect the testator's true intention, without being strictly bound by the literal meaning of the words used. Ambiguous or obscure clauses are to be interpreted in the manner most favourable to their effectiveness, read in conjunction with one another; and where an irreconcilable contradiction exists, none of the clauses that are in fundamental conflict with each other shall be valid (Article 421-6 of the Catalan Civil Code). In cases of doubt, provisions imposing any burden are to be interpreted restrictively.
VII.- WHEN A WILL MAY BECOME INEFFECTIVE
A will may become ineffective due to a subsequent breakdown of a marriage or civil partnership. Article 422-13 of the Catalan Civil Code provides that an appointment as heir, bequests, and any other provisions made in favour of the deceased's spouse become ineffective if, after the will was executed, the spouses separate in fact or by law, divorce, or the marriage is declared void, as well as where, at the time of death, a claim for separation, divorce, or annulment is pending, unless the parties have reconciled. Provisions in favour of a civil partner become ineffective if, after the will was executed, the partners separate in fact (unless they resume cohabitation), or if the union is dissolved for any reason other than the death of one of the partners or marriage between them.
Provisions in favour of a spouse or civil partner retain their effectiveness if it is apparent from the overall context of the will, codicil, or testamentary memorandum that the testator intended them to apply even in the circumstances covered by paragraphs 1 and 2.
This article also applies to relatives who are only relatives of the spouse or cohabiting partner, whether in the direct line or the collateral line up to the fourth degree, by both consanguinity and affinity.
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