How to make a Spanish Will if Notaries and law firms are closed
Continuing with our series of articles in these times of global distress, and with the aim of bringing solutions to some of the problems that those owning property in Spain may face in the following weeks due to the confinement measures in the UK, we wanted to talk about a potential scenario that could perfectly take place in the following weeks.
In our daily jobs we have come across every now an then with cases where there is an extreme urgency to grant a Spanish Will. This is usually connected to a person being terminally ill where time is of the essence. In those occasions and, as as pointed out in other articles such as the video below, a Spanish Will can be executed in England and Wales if this is witnessed by a Notary Public and two separate witnesses. Spanish Wills
But what would happen in the current times if someone, for whatever reason and not necessarily related to the COVID-19, would like to grant a Spanish Will but has no way to do it because Notary Publics are closed?
Ideally, it would be better to wait but if waiting is not an option, then Spanish Law would accept an English Will or a Codicil executed in compliance with the laws of England and Wales. This means, between others requirements, a Will or Codicil signed and dated by the testator or testatrix and witnessed by two independent witnesses. This English Will or Codicil, and although is not the preferred option, would be accepted in Spain. Obviously, the option above is still challenging but it is a possibility in cases where there is no other alternative. Those signing it would need to ensure that they are keeping the necessary distance as recommended by the NHS and the Government, and that the urgency of the situation justifies the risks taken. It would also be convenient that they check with a Spanish lawyer to ensure that the form and provisions of the Will are efficient from a Spanish legal and tax perspective.
And if it is not possible to gather two independent witnesses and therefore the English Will is not an option? then another option would be to grant a Spanish Will that is called in Spain “testamento ológrafo” or handwritten Will. This is not a very common type Will but it is still valid. It needs to be handwritten, dated and signed by the Testator without the presence of any witnesses. It must be said that it is not very common these days but is an option in a potential scenario where the testator or testatrix cannot gather two witnesses (if opting for an English Will) or two witnesses and a Notary Public (if opting for a standard Spanish Will). The Spanish handwritten Will can be drafted in English but since this will be a Spanish Will for the Spanish assets it would be paramount that the testator or testatrix speaks with a Spanish lawyer before executing the Will to ensure that the document complies with the formalities of a Spanish “testamento ológrafo” or handwritten Will and that does not revoke any previous Wills made for the assets in the UK. See below the Spanish Civil code that refers to “testamentos olográfos”. Spanish Civil code
The above are two ways to overcome the challenge that the current confinement and closure of law firms and Notaries may cause to someone who desperately needs to execute a Will for his or her assets in Spain. As indicated above, if time is not of the essence then it would be better to wait until law firms and notaries reopen but at least is good to know that there are a couple of alternatives for cases of extreme urgency.”
“Do what you can with all you have, wherever you are” – Theodore Roosevelt