My sister, who like me was a British citizen, sadly passed away few months ago. She left a handwritten and signed Will leaving her Spanish property to me. Unfortunately there is no other Will in the UK or Spain. This Will was not signed in front of a Spanish Notary and it was handwritten in English.
The solicitor acting for my sister’s husband has told me that this Will is not valid as it was not signed in front of a Spanish Notary and the English Intestacy Laws would apply placing her husband as the sole beneficiary.
Is this true? Is there anything I can do?
Dear reader,
Thank you for your query.
A handwritten Will signed by the testator / testatrix is known under Spanish Law as a HOLOGRAPH WILL and is regulated under article 688 et seq. of the Spanish Civil Code.
Therefore the Will signed by your sister could be valid provided it complies with the following legally stipulated requirements:
Firstly it should be noted that article 688 states that a Holographic Will can be granted in the testatrix’s own language, so in principle the fact of being written in English should not represent a problem; however in order for your late sister’s Will to be valid it should meet the following requirements:
– The testatrix must be of legal age at the time of granting the Will.
– The Will and its contents must have been totally handwritten and signed by the testatrix stating the year, month and day when it was granted.
– If there are any crossed out words, amended words or words written between the lines, then these should have been corrected by the testatrix and signed by her.
Validation procedure for this type of Will:
If the Will meets the above legal requirements then it should be registered within five years from the day of death in front of the ‘Judge for the First Instance Court’ who has jurisdiction over the deceased’s last address, or the address where the death occurred.
The person in possession of the Will should submit it to the Court within 10 days from when the death of the testator is known. The Will can also be submitted to the Court by any other person holding an interest in the deceased’s estate i.e. an executor, a possible beneficiary etc.
If the Judge accepts that the handwriting and signature have been clearly identified as belonging to the testatrix and the Will in general complies with all the legal requirements then he will agree to have it registered at the Notary under the corresponding protocol. Should this not be the case then the Judge will not allow the registry to be made.
Therefore as per the above and through the proper procedure your late sister’s Will could be perfectly valid and recognised in Spain.
However as we have previously advised on past occasions it is highly recommended for everyone to have a Spanish Will, especially persons not holding Spanish nationality and owners of property, rights or assets in Spain. The Will should of course be drafted under proper legal advice to avoid this problem and other more serious problems that could occur.
The information provided on this article is not intended to be legal advice, but merely conveys general information related to legal issues.
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White & Baos
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