SUMMARY OF THE ARTICLE
1.- What is needed to contest a will for incapacity.
Spanish law presumes that every person is of sound mind. Anyone wishing to contest a will must provide compelling evidence to the contrary, since the Notary’s assessment of capacity carries considerable weight in practice.
2.- What is, and is not, sufficient grounds according to the Supreme Court.
Only an almost total absence of discernment at the exact moment the will was made can justify its annulment. Mild cognitive impairment, or a diagnosis made after the will was signed, is not enough on its own.
3.- The case.
Our firm recently defended the heirs of a testator against several nephews and nieces who alleged incapacity. The court upheld the validity of the will, finding no proof of incapacity, and ruled that the claim was time-barred.
Sometimes, a relative passes away leaving a will that does not match what the family expected. In these situations, some family members may attempt to contest the will, arguing that the person who made it lacked the capacity to do so. Our firm recently obtained a favourable ruling in a case of exactly this kind. In this week’s article, we look at what it takes to contest a will for lack of capacity. And what our Supreme Court considers sufficient grounds, and what it does not.
What is needed to contest a will for incapacity?.
Spanish law starts from a clear presumption. Every person is presumed to be of sound mind, unless proven otherwise. Before a will is signed, the Notary Public carries out an assessment of the testator’s capacity. Although this presumption can be challenged with evidence to the contrary, that evidence must be compelling and convincing. In practice, the Notary’s assessment carries considerable weight. And the burden of proving incapacity always falls on whoever seeks to contest the will.
What does the Spanish Supreme Court say can justify annulment?.
According to case law, a will can only be contested successfully under specific circumstances. That is, where it is proven, clearly and conclusively, that at the exact moment the will was made, the testator’s mental faculties or reasoning were seriously impaired. In other words, a situation amounting to an almost total absence of discernment. One that prevented the testator from understanding that they were making a will, and why.
What situations are not sufficient grounds to contest or challenge a will?.
This is where many disputes are decided. Mild cognitive impairment, detected through tests such as the Pfeiffer test or the clock-drawing test, does not amount to incapacity to make a will. Nor does a diagnosis of a serious illness, if it is made after the will was signed. Nor do impressions from witnesses who had little contact with the deceased, or whose visits were occasional and spread over time. Courts require an assessment of the testator’s condition in the weeks closest to signing the will. Not their general condition, nor how it developed afterwards.
The case.
In our case, the testator had named one of her nieces as sole heir (our client), with whom she shared a close relationship. Other nephews and nieces, who had been named beneficiaries of a property under an earlier will, sought to contest the later will. They argued that the testator suffered from significant cognitive decline. However, the cognitive test carried out days before the will was signed only showed mild impairment. Weeks later, the testator was diagnosed with a fast-progressing illness, one that can remain mild before suddenly worsening, and she passed away shortly afterwards.
The court dismissed the claim, confirming that there was insufficient evidence of incapacity at the exact time the will was signed. The court also confirmed that the claim was already time-barred, as more than five years had passed since the testator’s death. You can read the complete ruling by clicking “HERE”.
Conclusion.
Contesting a will is not straightforward. Spanish law protects the last wishes freely expressed by an individual. At White-Baos Lawyers, we are experts in inheritance law and estate litigation. If you are facing a similar situation, whether you wish to contest a will or need to defend its validity, do not hesitate to contact us.
The information provided in this article is not intended to be legal advice but merely conveys information relating to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
E-mail: info@white-baos.com
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