This article explains the possibility according to the Spanish law of making a valid will with minimum formalities and no witnesses.
Why making a handwritten will?
In these exceptional times we are living some people can feel the urge to make a will in a rush just in case. In Spain, notaries are not working unless for extreme emergencies and wills might not fall into this category of work. Besides, as people is locked up at home by law going the notary to make a will might not be allowed. As simple as that. But if somebody feels that they need to make a will urgently I hope the following notes give them a little bit of peace of mind.
What is a handwritten will?
It is a will in which the testator and the content and the date are handwritten. It must show clearly the testator wishes’ about what to do with his property and assets after his death.
You can revokee it at any time making a later will. If you make a handwritten will now and you wish to revoke it after these emergency times for a later one made calmly you can do. At any time and as many times as you wish.
The essence of this will is that you can make it on your own and the secrecy. It is secret both its content and its own existence.
Nevertheless, it is highly recommended to tell somebody of your confidence that you made a will of this kind.
Who keeps this will?
You have to take care of keeping it properly.
How do I make it? Requirements
Very few really.
You will need a paper and a pen or a fountain pen (a pencil might be dangerous if the will has to be used after a long time).
They are as follows:
- You have to be over the age of consent according to your personal (national) law.
- It has to be handwritten in full. You can write in your own language. You have to state your full name. Who you are. Y0u have to be clearly identifiable. Take into account that in Spain we use two surnames (the first one coming from the father’s line and the second one from the mother’s. In the UK there is just one surname and married women take the husband’s name usually so it could be more difficult to identify who is the testator in some cases. Therefore, the more details to identify yourself you provide the better, even though only the full name is compulsory).
- Signature (as you sign usually otherwise it will it is not useful at all).
- Date. Very important. Your capacity will be assessed when the time comes on the date stated in the will.
- Any mistakes, amendments, erasures or rectifications ought to be saved with your signature. If not, they will not be valid.
- It is not essential, but it will help a lot if you choose specifically the law you wish to rule your succession. If you are British and wish the English law to rule your succession even if you reside in Spain. That will be very useful if this will has to be finally used at a later time.
Is the hand written will valid?
Absolutely. In Spain it is. You can do a will that way. Obviously, it is a way to make last will in emergencies as it could be these times we live in and without formalities (similar to the privileged wills that soldiers or salesmen can do sometimes in emergencies as well. In the UK, you can see Wills (Soldiers and Sailors) Act 1918 or Navy and Marines (Wills) Act 1953). But it is perfectly valid.
How to use the will?
When the time comes, whoever (if someone) knows about the existence of a will of this kind has to take it to a notary of the last residence of the testator after 10 days since he or she knew that the testator passed away.
Also, 5 years after the hand written will was made without using it (because nobody knew about it probably) the will is not valid.
Once the notary is aware of the will and is asked to make if official they will gather all the available evidence to make sure that the hand written was made by the testator. If the conclusion is positive then the will is valid and the notary makes a statement of it. If the notary is not convinced they make a statement saying so. In any case, whoever is legitimate to is able to take any legal action they might fee entitle to either to make the will valid or the opposite.
If you feel the urge make a will in these strange days you can do a handwritten one but it is advisable to make one before a public notary (called open will) which makes things when the time comes terribly easier.
Until the emergency situation is in force in Spain I would like to offer free adivce on wills of any kind to any person interested.
This is my little contribution to the society in these exceptional days.
Thank you for your time and attention and I hope this information is of use. You are very welcome to share if you liked it. You might be interested in this other post: wills and Brexit.
Please, note that this is general information. This is not specific legal advice. It is advisable to seek legal advice for any specific legal issue.