Law 8/2021 has introduced significant changes in the area of protection and assistance for persons with disabilities, particularly regarding guardianship and curatorship. These changes have a direct impact on the succession field, affecting the capacity to grant a will. As specialized lawyers, we must understand the implications of natural capacity versus legal capacity, and how the notary plays a crucial role in verifying this capacity. Additionally, the use of witnesses and preventive notarial powers are also modified within this new legal framework.
Natural Capacity versus Legal Capacity
The reform introduced by Law 8/2021 focuses on the natural capacity of individuals to perform legal acts, rather than the traditionally understood legal capacity. This means that to grant a will, it is not enough to be of legal age and not be incapacitated; it must be assessed whether the person has sufficient mental capacity at the time of signing. This change reflects a more inclusive approach that respects the dignity and autonomy of persons with disabilities.
The Civil Code, in its article 662, still establishes that all those whom the law does not expressly prohibit may make a will. However, the interpretation of this article must now align with the principles of the United Nations Convention on the Rights of Persons with Disabilities, which promotes the recognition of the full legal capacity of all individuals. In our daily practice, we face the challenge of determining when a person has the natural capacity to make a will, a topic that undoubtedly generates controversy and requires case-by-case analysis.
The Role of the Notary in Verifying Capacity
In the process of granting a will, the notary plays an essential role as a guarantor of the legality of the act. With the new regulations, the notary must evaluate not only the legal capacity but also the natural capacity of the testator, which entails a more subjective and detailed examination. This added responsibility requires the notary to have a well-founded criterion to determine the testator's suitability, which may include, in some cases, consulting with medical or psychological experts.
Recent jurisprudence from the Supreme Court, such as Judgment 414/2025, reinforces the importance of this role of the notary, highlighting that any reasonable doubt about the testator's capacity must be sufficient reason not to authorize the will. The ratio decidendi of this ruling focuses on protecting the rights of the testator, ensuring that their will is expressed freely and consciously.
Will Before Witnesses: When is it Necessary?
The use of witnesses in the granting of a will has remained an option for situations where the notary has reasonable doubts about the testator's capacity or when the testator cannot sign on their own. The current regulations, as outlined in article 701 of the Civil Code, allow for this modality, provided that the witnesses meet the legal requirements of impartiality and capacity. Practice teaches us that the use of witnesses adds a layer of legal security, although it can also complicate the process if their suitability or impartiality is questioned in subsequent judicial proceedings.
Wills granted before witnesses must be handled with special care. An error in this regard could lead to the nullity of the will if it is proven that the witnesses did not meet the legal requirements, as has occurred in recent cases that have reached the courts.
Preventive Notarial Powers
Preventive notarial powers offer a valuable tool for individuals anticipating future incapacity. These powers allow a trusted person to act on behalf of the grantor at a time when they can no longer do so themselves. Law 8/2021 has strengthened this figure, promoting its use as part of comprehensive succession planning that respects the grantor's wishes.
When granting a preventive notarial power, it is essential that the professional adequately advises the client on the implications and limits of such power. Clarity in drafting and the inclusion of specific clauses regarding the circumstances of use and the powers granted are crucial to avoid future conflicts. In practice, we have observed that these powers are especially useful in cases of degenerative diseases or when a progressive loss of capacities is anticipated.
- Verify the natural capacity of the testator through subjective evaluation.
- Consider consulting experts in cases where capacity is doubtful.
- Use witnesses only in justified situations and ensure their suitability.
Conclusion: Adapting Professional Practice
The regulatory evolution compels us, as legal professionals, to adapt our practices in light of the changes introduced by Law 8/2021. The capacity to grant a will is no longer a static concept but requires a dynamic and contextualized evaluation. Tools like LexPartis can be of great assistance in managing these processes with the necessary rigor and efficiency, allowing us to provide our clients with legal advice that meets the new legal demands.