During the past few years we have received several inquiries in relation to the possibility of revoking a Spanish Will due to the lack of capacity of the testator or testatrix.

This can occur when the testator is an elderly person living alone who can be conditioned or influenced by third parties.

In this regard we can point out that Spanish Courts have established in several precedents in which cases it is possible to revoke a Will due to lack of capacity of the testator.

Either way we must remember that the starting point is the PRESUMPTION OF TESTATOR’S CAPACITY TO MAKE A WILL AND PRESUMPTION IN FAVOUR OF THE WILL, which means that in principle it will be understood that the Will is valid and the testator had capacity to grant it unless proven otherwise.

Thus, it is assumed that the testator had capacity to grant the Will and the person contesting the Will based on the lack of mental capacity of the testator, must prove in an unequivocal and conclusive way the lack of mental capacity of the testator at the time of granting the Will.

It should be therefore proven that the incapacity or mental condition was severe and the proof must be clear, evident and not only based on assumptions or speculations. In these cases the medical reports are quite relevant as they could determine the mental capacity of the testator.

So, what really important is to be able to prove the mental capacity of the testator at the time of granting the Will, not before and not after, and it must be determined, as a fact, if the Will was given under legal mental capacity or not. It is very important to scientifically determine the capacity or non capacity of the testator by means of medical reports as previously stated, and any other experts reports, although other kind of evidence could also be accepted.

The level of difficulty of the Will could also be relevant, when trying to determine the sufficient mental capacity of the testator, as a greater ability is required to deal with complex Will where tangled divisions of the assets, elaborated math operations, complicated appointment of executors, etc, are included.

On the other hand, in those Wills granted in front of a Public Notary (as are the majority of the Spanish Wills) the Notary states that according to his/her knowledge the testator has the sufficient mental capacity to grant it. But this judgement of the Notary about the testators capacity can be refuted (iuris tantum), so a proof of the contrary can be accepted by the Courts. In this sense the Court can deem if the assessments of the Notary is wrong and if so it could agree to void the testamentary dispositions granted.

The information provided on this article is not intended to be legal advice, but merely conveys general information related to legal issues.

White & Baos
Tel: 966 426 185
E-mail: info@white-baos.com
© White & Baos 2011 – All rights reserved.