Spanish last will VS. British last will

A will is a document which contains instructions as to how to dispose of one’s assets after one’s demise. This type of document is present in every judicial system; however, it is regulated in a different manner depending on the system. Thus, a Spanish will and an English will only have in common the purpose of the will, while the requirements to make a will are very different.  

This article is going to present some differences between a Spanish will, that is, the will regulated in Spain’s derecho común, and between an English will, that is, the will included in England and Wales judicial system.

An English Will must be executed in accordance with the Wills Act 1837. In order for a will to be valid it must:

• be made by a person who is 18 years old or over;
• be made voluntarily and without pressure from any other person;
• made by a person who is of sound mind;
• made in writing;
• signed by the testator in the presence of two witnesses;
• and signed by the two witnesses, in the presence of the testator and in the presence of each other, after the testator has signed the will.

A Spanish Will must be executed in virtue of the Spanish Civil Code. In order for a will to be valid:

• the testator must be at least 14 years;
• they must be able to conform or express their will, even with help of media or other support;
• the testator must be mentally capable of expressing their will;
• in the moment of executing the will before the notary, the notario (Spanish notary public) must know the testator and if not, the testator will be identified with two witnesses who know him and are known to the notary, or by using documents whose purpose to identify people, issued by public authorities.

In English wills the testator must be at least 18 years old, as per Section 7 Wills Act 1837, to make a will unless the testator is entitled to make a privileged will. In Spanish wills, the testator must be at least 14 years old, according to article 663 of the Spanish Civil Code. There is one exception to this rule that is that holographic wills can only be executed by persons over the age of 18.

English Law includes holographic, single, joint, mutual and mirror wills. Spanish Law includes two types of wills:

1. Common wills: holographic, open and close wills.
2. Special wills: military and maritime wills and wills made in a foreign country.

English holographic wills must meet the same formalities requirements than any other will, except privileged wills. Regarding signatures and witnesses, section 9 Will Act 1837 states that:  (c) the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness). Therefore, an English holographic will includes the signature of the testator and two witnesses.

Spanish holographic wills are not executed before a notario.  Article 688 of the Spanish Civil Code establishes that, for a holographic will to be valid, it must be entirely written by the testator, be signed by the testator, and include the full date of execution.  That said, a holographic will must be sent to a notario within five years of the date of the testator, so it can be proved and be duly registered. Therefore, a Spanish holographic will only includes the signature of the testator.

In England and Wales, joint wills, mutual wills and mirror wills are allowed. However, The Spanish Civil Code establishes that two or more persons cannot make a joint will, nor can they execute the same will, be it to benefit each other, be it to benefit others. The Spanish Civil Code requires each testator to execute a separate will with their own wishes, and joint wills, mutual wills or mirror wills are prohibited. An exception to this are testamentos mancomunados included in special or regional laws in Spain.

English law does not require wills to be kept in a specific place but allows testators to use different places and services. In Spanish Law, the most common type of will is the one made and executed before a Spanish notario, called testamento abierto or open will. The original will, which is signed by the testator, the notario and any witnesses, if applicable, must be kept at the notario’s office. The notario later notifies the existence of the will to the Registro de Últimas Voluntades (Last Will Registry). The testator cannot keep the original will, but he can receive a simple or notarized copy of it.

The succession law of United Kingdom and Ireland allows you to leave your estate to whomever you wish. In the case of death without a will, by virtue of the Intestates’ Estates Act 1952, the law will decide the disposition of the estate. Spanish succession law establishes children and spouses and the ‘legal beneficiaries’, only allowing the testator to dispose of one-third of his estate as they please. The Spanish Civil Code will decide the disposition of the estate, when the deceased hasn’t left a will; when the will doesn’t contain the figure of the heir in all or part of the assets or does not dispone of all those assets corresponding the testator; when the condition placed on the heir is lacking or when the heir dies before the testator or revokes the inheritance without having a substitute and without giving rise to the right of accrete; and or when the instituted heir is unable to succeed.

In English law, a testator may leave their money and property to whomever they wish.  This principle is referred to as “testamentary freedom”. Therefore, as per English legislation, a testator can disinherit their spouse and/or children, including adult children.  There is an exception to this principle. The Inheritance (Provision for Family and Dependants) Act 1975 allows children of a deceased testator to make a claim against the estate if they can prove that the testator failed to leave them “reasonable financial provision”. However, in Spanish Common Law, you cannot disinherit your spouse and/or child unless they meet any of the legally expressed causes that allow disinheritance. These causes are included in articles 852 and following of the Spanish Civil Code.