In our office we have encountered this situation on more than one occasion. An individual, shortly before passing away -and despite the fact that he/she was suffering from an illness such as Alzheimer’s, dementia, etc.- modifies his/her will. As a result, in the will made before his/her death, a specific child or a third person is favoured. In these cases: Is it possible to challenge the will on the grounds of lack of capacity?. We analyse this matter, along with the access to medical records of deceased persons, in today’s article.
Challenging a will on the grounds of lack of capacity: presumption of validity and “favor testamenti”.
Let’s start with the basics. The judgement of capacity made by all notaries, when someone grants a will before them, enjoys a presumption of validity known as “iuris tantum”. In other words, from the outset, it is assumed that the will is valid and effective. And that the person who made the will was in full use of his or her faculties and had enough capacity. However, the notary’s judgement does not have the status of an expert or technical report. In other words, it does not guarantee that the person did in fact have full capacity. Therefore, if evidence of the contrary is presented, this presumption can be destroyed.
If a relative, heir, etc. wants to overturn this presumption, “hints” or “suspicions” about the testator’s capacity are not enough. The evidence that a person was not in full use of his or her faculties when he/she granted the will must be clear and unequivocal. Otherwise, in application of the general principle of law “favor testamenti”, it will be presumed that the person was in possession of his/her faculties. And that the will is valid.
How to prove the testator’s lack of capacity: Access to medical records of a deceased person.
In these cases, access to the deceased’s medical records is essential. The question is: do the heirs have the right to access to the deceased’s medical records?. The answer is YES, as there is a legitimate interest, such as confirming the testator’s capacity, for the purpose of contesting the will.
Both art. 18 of Law 41/2002 of 14 November on patient autonomy and rights and obligations regarding clinical information and documentation; and art. 46 of Law 10/2014, of 29 December, on Health of the Valencian Community; establish that:
“They shall only provide access to the clinical records of deceased patients to persons related to the patient, for family or de facto reasons, unless the deceased had expressly prohibited it, and this is accredited”.
Article 3 the Organic Law on Data Protection 3/2018 (which in addition to “family members”, expressly mentions the heirs) also states:
“Persons linked to the deceased for family or de facto reasons, as well as their heirs, may contact the data controller or data processor in order to request access to the personal data of the deceased and, where appropriate, their rectification or erasure”.
Neurology, psychiatry, and other departments.
When the deceased’s lack of full capacity is to be accredited, in addition to the clinical history, it is advisable to request reports and documents from other departments. In particular, all those related to the testator’s capacity: the areas of neurology, psychiatry, etc.
Challenging a will for lack of capacity is a complex process and the access to medical records of a deceased person, is key. At White-Baos Lawyers we are experts in legal advice on Inheritance Tax, Inheritances, Contesting Wills, etc. both when the applicable law is Spanish law, as well as in those processes in which there is a connection with foreign laws (English, Italian, German, French, etc.). Do not hesitate to contact us. We will study your case and offer expert advice on the subject.
The information provided in this article is not intended to be legal advice, but merely conveys information related to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
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