I. Introduction
A holographic will is one of the forms of testamentary disposition recognized in Spanish civil law.
Its main characteristic is that the testator writes it entirely in their own handwriting, without needing to go to a notary at the time of its execution.
However, for it to be legally valid, it must meet a series of requirements and undergo a protocolization procedure after the testator's death.
In this paper, we will analyze the regulation of holographic wills in the Civil Code, their advantages, disadvantages, and the procedure that must be followed for their validity.
II. Concept and Requirements
A holographic will is defined in Article 678 of the Civil Code as a will that the testator writes themselves, with the requirements established in Article 688.
These requirements are:
Only adults may execute it.
It must be written entirely by hand by the testator.
It must include the testator's signature.
The year, month, and day of execution must be expressly stated.
If it contains erasures, amendments, or interlineations, the testator must initial them, that is, correct and validate them.
Foreigners may write it in their own language.
Compliance with these requirements is essential to avoid the will's invalidity.
III. Notarization Procedure
Since a holographic will lacks notarial intervention in its execution, the law establishes a subsequent procedure to guarantee its authenticity and validity.
Filing Deadline:
Article 689 of the Civil Code establishes that a holographic will must be filed with a competent notary within five years of the testator's death.
Obligation to File:
Article 690 indicates that the person in possession of the will must file it within ten days of learning of the testator's death.
Failure to do so could result in liability for damages.
IV. Verification Procedure under the Spanish Notarial Law (LON).
Law 15/2015, in Section 3, regulates the process of verifying and registering a holographic will.
1. Article 61: Presentation, Verification, Opening, and Registration
This article establishes the rules for presenting and validating a holographic will.
The procedure must be carried out before a competent notary based on the testator's last domicile or habitual residence, the location of the majority of their assets if they are in Spain, or the place of death if it occurred in Spain.
It is also permissible to choose a notary from a neighboring district.
Failing that, the notary of the applicant's domicile.
If the will is not presented within ten days of the testator's death, any interested party may request that the notary require the person in possession of the will to hand it over.
To this end, the identifying information of the deceased must be proven, and, through information from the Civil Registry and the General Registry of Last Wills and Testaments, the death of the testator and whether they have executed other testamentary dispositions must be verified.
Likewise, if the person in possession of the will appears before a notary but has no interest in its validation, the notary will apply the provisions of Article 57.3, according to which:
When someone in possession of a sealed will appears before a notary in compliance with the duty established in Article 712 of the Civil Code and declares that they have no interest in the authentication and notarization of the will, the notary will request those who may have an interest in the inheritance, according to what the appearing party stated, and, in any case, if known, the surviving spouse, the descendants and ascendants of the testator, and, failing these, the collateral relatives up to the fourth degree, to initiate the proceedings before a competent notary, if they so wish.
When any of the interested parties is a minor and lacks a legal representative, or a person with a disability without sufficient support, the Notary Public shall inform the Public Prosecutor's Office so that it may request the appointment of a legal guardian.
Finally, a five-year time limit is established for the presentation of the will, after which no applications will be accepted.
2. Article 62: Summons of Interested Parties and Verification of Authenticity
After receiving the will, the notary public must summon the interested parties, including the spouse, descendants, ascendants, and, failing that, collateral relatives up to the fourth degree.
If their identity or whereabouts are unknown, a notice shall be posted on the municipal notice boards of the relevant City Halls for one month.
Furthermore, if among those summoned there are minors or persons with disabilities without sufficient legal support, the notary public must inform the Public Prosecutor's Office so that a legal guardian may be appointed Notarial.
If the applicant requests the intervention of witnesses to verify the authenticity of the will, the notary will summon them.
During the opening of the will (if it is in a sealed envelope), it will be initialed on all its pages, and the witnesses will be questioned.
If at least three witnesses who knew the testator's handwriting and signature certify its authenticity without reasonable doubt, it will not be necessary to call more witnesses.
If the witnesses have doubts or there are no suitable witnesses, the notary may order a handwriting analysis.
Interested parties may attend this procedure and make observations, which the notary will record in the minutes.
3. Article 63: Notarization of the Will
If the notary considers the authenticity of the will proven after the verification process, they will proceed to notarize it and issue copies to the interested parties.
However, if the authenticity cannot be proven, the notary will close the proceedings without formalizing the will.
In any case, if any of the interested parties disagrees with the notary's decision, they may resort to legal action to assert their rights.
V. Other Relevant Legal Provisions In addition to the specific regulations governing holographic wills, there are other provisions in the Civil Code that may affect their validity:
Non-compliant sealed wills:
Article 715 establishes that if a sealed will does not meet the formal requirements, it may be valid as a holographic will if it is entirely written and signed by the testator and meets the other conditions specific to this type of will.
Wills made at sea:
According to Article 724, open wills made at sea must be kept in the custody of the ship's Commander or Captain and recorded in the ship's log.
This same provision applies to both holographic and sealed wills.
Safekeeping of Wills at Sea:
Article 729 states that if the testator dies during the voyage, the Commander or Captain will collect the holographic will and deliver it to the local Maritime Authority upon arrival at the first port of call in the Kingdom.
The local Maritime Authority could be the Maritime Captaincy corresponding to the first Spanish port where the vessel arrives, responsible for receiving and managing the deceased's holographic will until its delivery to the appropriate civil or judicial authorities.
VI. Advantages and Disadvantages
The holographic will presents a series of advantages and disadvantages that are important to consider:
Advantages:
Ease and speed: It can be drafted at any time without the need for witnesses or a notary.
Free of charge: It does not require notarial fees at the time of its execution.
Confidentiality: It allows the testator's wishes to remain secret until their death.
Disadvantages:
Risk of loss or destruction:
It is not officially registered, making it vulnerable to disappearance.
Possibility of forgery or challenge:
Without notarial involvement, its authenticity may be disputed.
Difficulties in notarization: The validation process can be complex.
Drafting errors: Without legal guidance, the testator may draft an ambiguous or contradictory will, which can lead to conflicts among heirs or even invalidate the will.
Lack of awareness of legal limitations: The testator may be unaware of essential legal provisions, such as the statutory share of forced heirs, which can lead to challenges and legal disputes.
Difficulties in interpreting the testator's intent: A poorly drafted or confusing will can lead to different interpretations, increasing the risk of litigation.
A holographic will is a form of testamentary disposition that grants flexibility and confidentiality to the testator.
However, its limitations and the need for a notarization procedure can lead to complications in its execution.
Article 679 states:
A will is considered open when the testator expresses their last wishes in the presence of the persons who must authorize the act, who are thus informed of its contents.
And according to Article 694:
An open will must be executed before a Notary Public authorized to practice in the place of execution.
Thus, the open notarial will offers significant advantages over the holographic will.
Among these advantages are its legal security, as it is executed before a notary public, the impossibility of loss, the ease of interpretation, and the immediate application of its provisions after the testator's death without the need for subsequent notarization.
These characteristics make the open notarial will the option chosen by the vast majority of testators precisely because of its advantages in terms of security and ease of execution.
