Wills During the COVID19 Pandemic

As everyone knows, the World Health Organization elevated the health crisis situation caused by Covid-19 to the category of an international pandemic.

In our case, the Spanish State approved Royal Decree 463/2020, of 14 March, declaring a state of alarm for the management of the health crisis situation caused by Covid-19.

In recent weeks we have been receiving numerous queries to find out how, in the event of a possible death caused by this deadly virus, either our own or that of a family member, we could leave our possessions to our most beloved relatives through a will.

Due to the current situation, what options does Spanish law offer if we wish to make a will and cannot be assisted by a Notary?

As provided for in our Spanish Civil Code, there are three ways to make a will, without the intervention of a notary.

Specifically, we will see two exceptional open wills (granted by a person in imminent danger of death and in the event of an epidemic) and, as a third modality, the holographic will.

Will in case of an epidemic.

In the first, a will in the event of a pandemic, the legislator has set the standard for this current state of alarm.

This modality allows the possibility of granting wills without the intervention of a Notary, before three witnesses over sixteen years old, who understand the testator, (his language) and have sufficient capacity to understand the meaning of the act they are witnessing.

Likewise, the law prevents the spouse, future heirs and relatives by the fourth degree of consanguinity and second degree of affinity from being witnesses.

Will granted by a person in imminent danger of death.

This type of will allows that, when a person is in imminent danger of death, he or she may grant a will without the intervention of a notary, before five suitable witnesses.

This will is limited only to the most extreme cases of the testator’s seriousness, whether due to imminent risk of death or loss of faculties. In this case, moreover, the five witnesses must be of legal age and meet the conditions required by law to be considered suitable, i.e. they must be persons of sound mind who understand the language of the testator and who are neither blind nor totally deaf or dumb.

Period of validity

Both wills will only be valid for two months after the testator has left the life-threatening situation or the epidemic has ceased.

Holographic will (handwritten will)

This type of will is one that the testator writes for himself in his own handwriting.

The requirements for its writing are simple:

  • To be of legal age, in full possession of mental faculties at the time of granting
  • That the will be completely written in the testator’s own handwriting, in his own language when he is a foreigner; with an indication of the specific date on which it is granted and his signature.

On the death of the testator, a period of five years is allowed for its presentation to a notary to certify its authenticity and to have it notarised. Nevertheless, the person who has the will must present it to a Notary within ten days of becoming aware of it, since if he does not do so he may be held responsible for any damages that may be caused by the delay.

What if I am abroad?

People who have been caught in this situation abroad can prove that they are in compliance with the laws of the country in which they are, or they can make use of the holographic will, even if the laws of the country do not allow it.

If possible, they may make a will before the diplomatic or consular official of Spain who exercises notarial functions in the place of the granting, with the formalities of the Civil Code. The diplomatic or consular agent shall send a copy of the open will, or the certificate of execution of the closed will, authorized with his signature and seal, to the Ministry of Foreign Affairs for deposit in its archives. Similarly, when the testator has died, the agent shall send the closed wills or holographic records, of which he is the depository, to the Ministry, together with the death certificate.

If I am a foreigner and I reside in Spain, can I also make a holographic will?

Yes, if you are a foreigner and you reside in Spain, or you are here on a temporary basis, you can make a holographic will, and you can even do so in your own language.

And if you are a national of a member state of the European Union, do not forget that according to EU Regulation no. 650/2012 you can specify whether you want your succession to be governed by Spanish law, by reason of residence, or by your own nationality.

Do not hesitate to contact us to resolve your doubts.

In Imont Legal Services, we want to contribute with our grain of sand and offer more than ever our legal advice.

We know that these are difficult times with many concerns, so we want to support them so that they are less.