The entry into force of Law 8/2021, which reforms civil and procedural legislation to support people with disabilities in exercising their legal capacity, presents us with new challenges in the succession field. The now clearer distinction between natural capacity and legal capacity, along with the new role of curatorship, directly affects the granting of wills. In our daily practice, we find the need to reassess how these figures impact testamentary intent and the role of the notary as a guarantor of the testator's capacity.
Natural Capacity versus Legal Capacity
The capacity to make a will has traditionally been understood from the perspective of Article 663 of the Civil Code, which requires the testator to be of 'sound mind.' The reform introduced by Law 8/2021 highlights the importance of natural capacity, that is, the individual's ability to understand and express their will consciously and deliberately. However, this generates tension with legal capacity, which remains a formal requirement in Spanish legislation.
Natural capacity focuses on the testator's understanding at the specific moment of granting the will. Here, the notary plays a crucial role, as their judgment regarding the testator's capacity can be decisive. However, what happens when there is a support measure such as curatorship? The answer is not straightforward and requires a detailed analysis of each case, which can lead to interpretative conflicts.
The Role of the Notary in Verifying Capacity
The notary, as a public official, has the responsibility to assess the testator's capacity at the time of granting the will. With the 2021 reform, this responsibility has intensified, as the testator's natural capacity must be evaluated more rigorously. According to current regulations, the notary must ensure that the testator understands the scope of their testamentary provisions.
In situations where there are reasonable doubts about capacity, the notary may require the presence of five suitable witnesses, in accordance with Article 698 of the Civil Code. This mechanism is not new, but its application gains relevance in the current context, where natural capacity may be subject to dispute. Furthermore, the notary must document any support measures that have been implemented, such as curatorship, which adds an additional layer of complexity to the process.
Wills Before Five Witnesses
The use of witnesses in the granting of a will is a tool that the notary can utilize in the face of doubts about the testator's capacity. The regulations allow that, in case of doubt, five suitable witnesses may be called upon to corroborate the testator's natural capacity. This procedure, although less common, becomes a lifeline in situations where the testator's legal capacity is in question.
Case law has addressed instances where the presence of witnesses was decisive for the validity of the will. For example, the Supreme Court ruling of 2022 emphasizes that, while it is not a general requirement for all wills, the presence of witnesses can be crucial when there are support measures such as curatorship. This ruling reinforces the importance of understanding when and how this resource should be applied.
Preventive Notarial Powers
Preventive notarial powers are an instrument that allows a person to foresee situations of future incapacity, delegating the management of their assets and personal decisions. With the reform introduced by Law 8/2021, the relevance of these powers has increased, as they offer a flexible solution for managing the assets of those who cannot perform these functions themselves.
It is essential that these powers are granted when the grantor has full natural capacity, which must be certified by the notary. Additionally, they must clearly reflect the delegated powers and any specific conditions that the grantor wishes to impose. This not only ensures compliance with the grantor's intent but also provides a clear and legally supported framework for those acting on their behalf.
- Thoroughly assess the testator's natural capacity.
- Consider the use of witnesses in case of any doubts about capacity.
- Adequately document any existing support measures.
Frequent Practical and Litigious Aspects
In practice, disputes over the testator's capacity are a common area of litigation. Heirs may challenge the validity of the will, alleging a lack of natural capacity at the time of its granting. Here, notarial documentation and the presence of witnesses can be decisive for defending the validity of the will.
Another frequent litigious aspect is the interpretation of the testator's intent when support measures are in place. Lack of clarity in notarial powers or testamentary provisions can lead to conflicts between heirs and curators. In our experience, we always recommend precise and detailed drafting of documents to avoid misunderstandings and potential litigation.
In conclusion, Law 8/2021 compels us to rethink how we approach capacity in the granting of wills. Tools like LexPartis can be of great help in managing these processes more rigorously and efficiently, ensuring that both legality and the testator's intent are respected.