When making a will, the most advisable option is to make a will before a notary, since you will be obliged to write it according to your will as a testator, which must investigate, interpret and adapt to the legal system. You can also go before a lawyer, in order to advise you on more specific issues, but this advice does not exclude the work that the notary will develop in any case. In particular, the open testament modality is recommended, due to the complexities of the succession phenomenon, such as the peculiarities of the regional legislations of the Autonomous Communities.
In UK there is a common civil law, mainly configured by the Civil Code. But certain civil matters are regulated by some Autonomous Communities that have civil legislative competence, the common law becomes subsidiary, giving preference to the existing regulation in those Autonomous Communities (special provincial or civil law).
This special civic or civil right is sometimes applied because of the civil neighborhood of the person (1) and others by the mere fact of granting a will in the territory of incidence of said statutory right. It is, therefore, a personal or territorial law.
In relation to the Autonomous Communities, several questions arise:
- – The language: Article 684 of the Civil Code establishes that the will must be written in at least one official language of the place where it is granted.
- – The joint testament (2): there are Autonomous Communities in which this is not accepted (articles 669 and 773 of the Civil Code), as in the Balearic Islands and Catalonia. In other communities the joint will is accepted, so the prohibition of the Civil Code does not apply.
- – The trust (3), which is the figure by which the testator is allowed to name a person who will be responsible for distributing his inheritance when the first dies. In the event that there is one or several non-profit entities with which you would like to continue collaborating when you are no longer present, you should inform this person about your desire to include it or include them in your inheritance.
(1) Civil Neighborhood: It is the link between the person and a legal system of an Autonomous Community in civil matters. If a person acquires a civil neighborhood (for example, in Aragon), the legislation of the Autonomous Community of that neighborhood is applied. It is acquired by birth, filiation or residence (normally 10 years of habitual residence in a Community, although with an express declaration, 2 are enough).
(2) Common Testament: It is the one that is granted by two or more persons. In some places it refers only to spouses, but in others it can be spouses or not, and can even be more than two people. They do not have to name each other heir, but nevertheless, in practice it is the most usual.
(3) Trust: It is the act of naming in the testament one or several persons to order their succession.
ARAGON
The basic regulation in the regional legislation of Aragon in this matter is Law 1/1999, of February 24, of successions due to death.
Notarial wills granted in Aragon will not require the intervention of witnesses, except in exceptional circumstances. This rule is territorial, not personal, which implies that it is applicable not only for the Aragonese who tests in Aragon, but for any person who grants a notarial testament in Aragonese territory.
The specialty of this provision is not because it is the only Community that establishes it (in fact the Civil Code regulates it the same), but it was the first regional legislation that did so, anticipating the rest of the Autonomous Communities.
It should be noted that in Aragon there is also the possibility of granting a joint testament (1), that is, the one granted by two or more people in a single act and in a single instrument.
The rules that regulate the joint will are of a personal nature, that is, they “accompany” the Aragonese wherever he grants a will, unlike what we have just pointed out about the witnesses.
As a curiosity, it should be noted that if one of the grantors is not Aragonese, he can do so as long as his legislation does not prohibit him. Thus, the joint testament granted by an Aragonese with someone subject to the rules of the Civil Code, to the Catalan or Balearic law would be null.
Joint testament: It is the one that is granted by two or more people. In some places it refers only to spouses, but in others it can be spouses or not, and can even be more than two people. They do not have to name each other heir, but nevertheless, in practice it is the most usual.
BALEARICS
The legislation in force on the islands is composed of Legislative Decree 79/1990, of September 6, which approves the consolidated text of the Civil Law Compilation in the Balearic Islands.
From its regulations on succession we can highlight two issues:
- – The presence of witnesses in the wills granted before a Notary. The 1990 Decree provides that the intervention of witnesses is not necessary, but establishes several exceptions and one is: “When the notary does not know the testator”.
- – The figure of the codicil (1), similar to that of the Probate Code of Catalonia
As regards the institution of heirs, a criterion similar to the Catalan Code is also followed, stating expressly that the institution of heir is an essential requirement for the validity of the will. However, the Balearic regulation distinguishes between its territories. Thus, the requirement of the institution of heir applies to Mallorca and Menorca, but not to Ibiza and Formentera, where it is said that the will and the succession agreement (2) will be valid even if they do not contain an heir institution or they do not understand the all of the goods (Article 69.2 of Legislative Decree 79/1990).
- (1) Codicil: This institution is conserved in Catalonia, the Balearic Islands and Navarra. To define it, we can say that it is a brief disposition of last will without institution of heir, to reform or to partially add the testaments. In other words, it is like an annex to the will that completes it.
- (2) Inheritance Pact: As any pact, it is a contract or agreement of wills between two or more persons, and to be a succession, refers to the one that articulates any provisions mortis causa on one or some of the contracting parties. Its content may be varied, it may be waived by a contractor to the inheritance of the other contracting party, a provision may be made in favor of a third party, etc.
