Imminent danger

Deathbed Will

In the case of imminent danger of death and when THERE IS NO POSSIBILITY TO CONTACT A NOTARY, it is possible to declare the last will before five witnesses. This possibility means that nobody need die intestate but it must be proved that this kind of testament was made not due to the preference of the testator but due to the impossibility, in practical terms, to obtain a notary. The witnesses will be asked about this, and so it would be advisable to express in the will why a notary could not be obtained, or the measures that were taken to try to obtain one.

The law also legislates for a last will being made in the case of an epidemic.

In the case of an epidemic the testator can make this kind of Last will even if he or she, the testator, is not affected by the illness, so it is not strictly the same as being in imminent danger of death or of being at imminent risk of dying without a will. For this reason, some legal authors are of the opinion that in the case of an epidemic, there is no requirement to prove that it was impossible to use a notary. However, it is always advisable to try to obtain a notary.

In the case of an epidemic a Last Will can be made before three witnesses older than sixteen. Remember that in all other cases witnesses must be of legal age (eighteen).

The rest of the regulation is the same for both a Last Will in imminent danger of death and a Last Will in time of epidemics.

Witnesses must be of sound mind, who understand the testator’s language. They can be residents or non-residents, Spanish or foreigners but they must know the testator and check if he or she is fully capable of expressing his or her last will

The EU regulation on successions does not rule anything regarding last wills made verbally. Neither does the Hague Convention of the 5th October 1961 about norms of conflict regarding last wills. The Last will made in this verbal forms will be valid when the norms of conflict in the country where the will must have effect, admit the will made verbally according to the formalities of the country where it was made, as happens in Spain, so those testaments made in Spain, can be used by foreigners, residents or non-residents, and will be valid to dispose of Spanish assets.

Neither they nor their relatives ( until fourth grade or second grade, if they are in-laws) can be named as inheritors or legatees. By way of exception some movable assets can be legated or a small amount relative to the total value of the estate.

The testament must be written if possible. It may also be recorded in a device so the file can be kept in some way. However, The Last Will, will still be valid if the witnesses can not read, write or record, and can only hear the testator’s Last Will.

Such testaments will become invalid two months after the imminent danger of death has passed or the epidemic has ended.

If the testator passes away within this term, the testament will become invalid if within three months of the death, the witnesses do not go to a competent notary to make the deed, regardless of whether the last will was written or verbal.

The competent notary is that of the last residence of the deceased, or that where the most valuable assets are located or that of the place of death.It can also be any of the neighbouring district notaries, or the one of the residence of the person requesting the service.

The interested party, if he or she is not a member of the family, must prove some valid interest in the formalisation of the will and also provide the notary with the contact details of the witnesses for the notary to hear their declarations about the will.

The witnesses will be asked whether they heard directly and at the same time from the testator that what he or she was saying was his or her Last Will and that it was declared with the serious intention of being the Last Will.

If the will was written or in some way recorded or kept on file, the witness need only confirm that they witnessed the testator saying that it was his or her Last Will, and if it is written, that they saw the testator signing it and confirming it to be the testator’s signature, if any.

If the Last Will was made verbally, all the witnesses must agree upon each point in order for that point to be valid. If any witness does not agree with the others upon any particular point, then that point will not be valid.

If the notary considers the statement to be authentic he will write and keep the Last Will, also keeping the papers, recordings or files in which it was presented.

If the notary considers the statement to be inauthentic he will close the proceedings without keeping any Last Will.

In either case, an interested party can claim the authenticity or inauthenticity of the Last Will in court.

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