In addition to a notary to attend and record of the destination of the assets of a person, the lay contemplates another modality, the Holograph Testament.
The most usual when drafting a will is go to a notary and record of the destination of the goods of a person. However, the law contemplates another mode, the ‘Holograph Testament‘. Jane Seymore, a lawyer specialising in criminal law, prison, family and inheritance (uk will writers), has written an article on the portal of legal developments Confi legal which we reproduce given their interest:
What is the handwritten last will and testament?
Is that the testator writes in his own handwriting. The Civil Code refers to it when he says that: “the Testament is called Holograph when the testator writes it for yourself”.And then specifies a shape and certain requirements.
Is thus of a Testament hand written by the testator himself that has bear his signature “in own handwriting”, without any rewording different intervention no(there are few times in which, following the death of someone, appears a written “paper” It containing your wishes in relation to one’s own).
Although you have to bear in mind that, at times, it may be an option “risky” because of the problems that can occur by ignorance of the law and the requirements imposed by this, both in terms of form, and in relation to the content of the provisions testament areas.
Thus presents advantages as being “strictly secret” (since only the testator knows it), as well as completely free in their granting.
But in addition to the already designated, has certain difficulties to be taken into account, among which we highlight: its formalities, the possible loss, your ignorance or destruction, or costs of what is called your “certification” and “Probate” (which more later we’ll explain).
Which requirements have been give to make it valid?
Only adults may do so. Is not possible, therefore, that minors over the age of 14 can make use of this form of test, while the code itself we are allowed to make Testament (which is logical because, at that age, the traits of writing may not be still well secured) OS).
It must be written in its entirety and signed by the testator (the intervention of a notary is not given). It follows that it can not be granted for people who do not know how to read or write as well as you can either be written by somebody different from the testator himself (although it has been issued it). Nor is supported which is written to computer or by means of any mechanical instrument, nor included as sign the fingerprint of the testator. Although just the signature that normally use, not being necessary to register the name and full surname (just that can guarantee the authenticity of the same, for example, contrasting it with any other document containing his signature).
It must express the year, month, and day in that it has been granted (not necessary until the place where is granted).
According to designates the own code, “if it contains words crossed out, amended or between lines, the testator will save them under your signature”. Where this is not done, strikethrough, amended or between lines, words not shall be taken into account provided that they do not affect the ‘essence’ of the text (in which case will be Yes invalidated). Equally, nor are you can write under firm, unless it becomes to sign again with the added text after.
And we must also bear in mind that, according to the text of the law, “foreigners may confer Holograph Testament in their own language”.
Can the testator make sure that, at the time of his death, the existence of this will know?
While the Civil Code does not refer to this end (precisely because it is a private act which includes a statement of private will), the testator can, if he wants to, give this “role” to another person or even to a notary.
In addition, you can also reach it in the General Register of acts of last will by affidavit (which is the record where are registered all wills and ensuring that the testator is known the existence of the same once deceased).
And once referred to and is available after the death of the person,
What is there to do?
In common law, according to the Civil Code, “you must formalize, presenting it, in the five years following the death of the testator, notary. This will extend the Act of notarisation in accordance with notarial legislation”(note that this term may vary in those regions that have their own statutory right). If it does not arise in these 5 years, the application will not accept.
It is important to know that the last reform of the law on voluntary jurisdiction, published on 3 July 2015, is replaced in this matter to the Court of first instance of the last domicile of the testator or the place where this would have died by the figure of the notary thus simplifying the procedure.
And as to which notary shall have the jurisdiction, it will be:
-The last domicile or habitual residence of the deceased.
-Which is competent to act in the place where the deceased had most of their heritage.
-The place that had died (provided they were in Spain).
-The notary who is competent to act in a district adjacent to the former (the choice of one or another own heirs, have it insofar as it is homes, all of them, that are in Spain).
– And Lastly, the notary of the place of domicile of the requesting (the person concerned).
But not only must be taken into account within 5 years, but there is another important that cannot be ignored. So, it’s the deadline imposed for the person of depository of the will, if any (person that the testator “entrusted him” to be presented after his death).
There are time limits
In this way, according to the law: “the person who has in his possession a Holograph will shall be submitted to competent notary in the ten days after becoming aware of the death of the testator. Breach of this duty will make you responsible for the damages caused. Also you can present it anyone who has interest in the Testament as heir, legatee, executor or any other concept”. Therefore does not arise by the depositary within that period, any interested party may request the notary requiring you to make it (response of the damages that their refusal could generate).
Here is the clear problem that a person has in his possession the Testament but nobody know this end.
Once submitted and funded the death of the testator, shall be his certification as notarial legislation (i.e. give it by the way following a procedure to verify their authenticity) and the identity of its author will be credited.
This certification is, in synthesis, a requirement of the spouse, ascendants and descendants of the deceased (if any), listening to witnesses, and being possible, in case of doubt, celebrate a calligraphic expert evidence about the letter and signature of the testator.
Subsequently, “the notary, if considered accredited to the authenticity of the will, shall authorize the Act of notarisation, which shall contain the actions carried out and, where appropriate, the observations expressed (of this Act will give a copy to interested parties).”
If the will were not witnessed, by not sufficiently prove the identity of the grantor, will proceed to record file without drawing one up.
Authorized the notarisation of the Holograph Testament or not, interested non-compliant parties may exercise their rights in the trial concerned”(for, where appropriate, be able to challenge or object to the authenticity or inauthenticity of the Holograph Testament).
In this way, we see as “in house test” with a simple paper and pen is possible. That if complying with the requirements that the law.
However, and despite this, their difficulties are manifest. Recommend, although it is logical that, if you do it and choose a depositary of the Testament (other than the notary or take it to the register) is necessary to make sure that he is a person of absolute confidence and will act at all times in good faith.
In my opinion, and despite this “comfortable” and, on many occasions, “advantageous” form of test, remains, however the Testament awarded best notarised and, as not, the safest.