SUMMARY OF THE ARTICLE:
1. Contest a will for lack of capacity
A will can be declared null if the testator did not have capacity at the time it was executed. Capacity is presumed, but the will can be declared null if there is evidence of cognitive deterioration (Alzheimer’s, dementia, etc.).
2. Presumption of validity and burden of proof
In Spain, a will is presumed valid. It is assumed that the testator had capacity unless proven otherwise. Anyone contesting a will must provide clear and objective evidence of incapacity at the time of execution, usually medical or expert reports. The presumption of capacity derived from the notary’s assessment can also be challenged. A court may review the notary’s evaluation.
3. Real case: Will declared null due to cognitive deterioration
In the favourable judgment obtained by White-Baos Abogados, the testator executed two wills in 2017. After the wills were executed, the testator was declared legally incapacitated. It was proven that at the time of execution, they did not have sufficient capacity. The court declared both wills null.
Family disputes over inheritance are more common than they seem. Often, disagreements between heirs arise due to the existence of multiple wills, unexpected changes in distribution, suspicions that the testator was manipulated, etc. In this week’s article, we analyse a real case in which our firm has managed to contest a will. The reason: lack of capacity of the testator.
Main reasons to contest a will.
A will can be declared null for various reasons. Among the most common are:
.- Formal defects. When the legally required formalities are not met. For example, in the case of an open will, when it is not executed before a notary. Or when it is executed in exceptional circumstances and there are no witnesses, etc.
.- Defects in consent. When the testator is forced to execute a will against their will. Or if they are a victim of deception or manipulation, to induce them to make a will in a specific way.
.- Etc.
Likewise, if the testator lacked capacity at the time of execution, the will may also be declared null. We discuss this below.
Lack of capacity to grant a will. Presumption of validity and burden of proof.
Under Spanish law, the starting point is that the will is valid and that the testator had capacity, unless proven otherwise. Therefore, anyone contesting a will must provide clear and conclusive evidence that, at the time of execution, the testator lacked rational capacity.
The evidence must focus on the specific moment of execution, and mere indications or conjectures are not enough. Objective evidence is required, usually medical or expert reports demonstrating a serious mental condition. The complexity of the will also influences the required standard. That is to say, a simple will with a basic distribution of assets is not the same as a more elaborate document, which requires greater capacity, with complex clauses, economic compensations, etc.
In addition, in wills executed before a Notary Public, the notary himself states that the person was in a position to understand what they were signing. This presumption, however, admits evidence to the contrary, since the notary can be wrong and the court can review their assessment.
The specific case: Wills annulled after declaration of incapacity.
The testator executed two wills: one at the beginning of 2017 and another in mid-2017. Also the second of them was also a particularly complex will (due to the clauses it incorporated). It is the case that the testator’s medical condition had progressively worsened at the time of executing those wills. In addition, the testator was declared legally incapacitated in November 2017.
Although the declaration of incapacity was issued after executing the will, case law is clear: “a later declaration of incapacity may constitute an indication that the mental condition already existed at the time the will was executed”.
Consequently, the Court declared both wills null and void, as requested by our firm in its claim. You can read the full court ruling by clicking “HERE”.
Conclusions.
At White & Baos Lawyers we are experts in contesting wills and obtaining declarations of nullity. If you suspect that a will may be null due to lack of capacity or another reason, 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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