Wills in Spain: Types, Requirements and Execution (Notarial vs. Holographic)

Will (Testament): Concept and Capacity (Arts. 662-687 CC)

A will (testamento) is a unilateral, strictly personal and revocable act by which a person (the testator) disposes of their assets and rights to take effect after their death (Art. 667 of the Código Civil (CC): Spanish Civil Code). It is the most significant legal act in the law of succession.

Testamentary capacity (Art. 663 CC): Persons under the age of 14 and those who are not of sound mind at the time of executing the will lack capacity to make a will. The Supreme Court ruling (STS: Sentencia del Tribunal Supremo) of 29 January 2018 established that capacity is presumed in every person unless a final judgment of legal incapacity expressly deprives them of the right to make a will.

Types of Will (Arts. 676-715 CC)

The Código Civil distinguishes between ordinary wills (notarial open will, holographic will, and closed will) and special wills (military, maritime, and wills executed abroad).

Open Notarial Will (Arts. 694-705 CC)

The Most Common Form

The open notarial will is the standard form. The testator declares their wishes to a notary (notario, a civil-law notary), who drafts them, reads them back to the testator, and formally authorises the document.

Formal Requirements (Arts. 694-695 CC)

1. The testator declares their wishes to the notary (an interpreter may be used if the testator does not speak Spanish)
2. The notary writes the will clearly and without deletions
3. The will is read to the testator (in the presence of witnesses if the testator is blind, does not understand the language, or the notary deems it appropriate)
4. The testator signs (if unable to do so, another witness signs at their request)
5. The notary formally authorises the document
6. The will is automatically registered with the General Register of Last Will and Testament Acts (Registro General de Actos de Última Voluntad; MJUS)

Witnesses: witnesses are not required for an ordinary notarial will (following the reform introduced by Law 30/1991). They are only required where the testator cannot or does not know how to sign, or is blind or illiterate.

Advantages

• Maximum legal certainty: the notary verifies capacity and legal compliance
• Safekeeping: the notary retains the original in their protocol (official records) indefinitely
• Easy proof: established by means of a certificate from the Register and an authenticated copy

Holographic Will (Arts. 688-693 CC)

Formal Requirements (Art. 688 CC)

A holographic will must be:

1. Written entirely by hand by the testator (no typed sections or parts written by another person are permitted, nor a computer-printed document that is merely signed; STS of 11 June 2018)
2. Dated with the day, month and year (an incorrect date may invalidate the will if it creates ambiguity as to the testator's capacity at the relevant time: STS of 14 September 2022)
3. Signed by the testator at the end of the document

The testator must be at least 18 years of age (minors are an exception: only a notarial will is permitted for them).

Verification and Notarisation (Arts. 690-693 CC)

Following the testator's death, a holographic will does not take immediate effect: it must:

1. Be presented before a notary within 10 working days from the date on which the presenting party became aware of the death
2. The notary will verify (adverará) the will: if the testator's handwriting and signature are recognised by persons who knew them, the notary will notarise it. If there is any doubt, a handwriting expert report may be ordered
3. Once notarised, it carries the same legal force as a notarial will

If no one presents the holographic will within the time limit: the testamentary heir loses the benefit of the will (Art. 691 CC): although the Supreme Court has qualified this position where there is good cause for the heir's ignorance of the will's existence.

Risks of a Holographic Will

• It may be lost, damaged, or concealed by interested heirs
• The handwriting or the date may be challenged (by means of a handwriting expert report)
• The absence of notarial oversight of capacity leaves the will open to challenge on grounds of incapacity

Closed Will (Arts. 706-715 CC)

The testator writes their will (or has it written by another person) and places it in an envelope that is sealed and closed in the presence of a notary. The notary draws up a record (acta) on the cover. Its use is exceptional (as it ensures the contents remain secret until death).

Forced Heirship: Restrictions on Freedom of Testation (Arts. 806-840 CC)

A testator may not freely dispose of their entire estate if there are forced heirs (herederos forzosos, legitimarios). Under ordinary Spanish law (derecho común):

• Children and descendants: 2/3 of the hereditary estate (1/3 as the strict forced share ( legítima estricta ) plus 1/3 as the improvement share ( tercio de mejora ) which may be allocated to any descendant). Only the remaining 1/3 (the freely disposable portion) may be left to persons outside the family
• Parents and ascendants (where there are no descendants): 1/2 of the estate
• Surviving spouse (in concurrence with descendants): a usufruct over the improvement third; in concurrence with ascendants: a usufruct over one half; where there are neither descendants nor ascendants: a usufruct over 2/3

Law 8/2021 (on disability) extended the forced share protection for children with disabilities: a testator may encumber the strict forced share of other children with a fiduciary substitution (sustitución fideicomisaria) in favour of the child with a disability (reformed Art. 808.3 CC).

Disinheritance (Arts. 848-857 CC)

A testator may disinherit forced heirs only on the specific grounds set out in the CC (Arts. 852-855 CC): physical ill-treatment, refusal to provide financial support, abandonment, and others. The Full Chamber of the Supreme Court ruling (STS Pleno) of 3 June 2014 recognised psychological abuse as a ground for disinheritance, even though the CC does not expressly mention it.

Conclusion

The open notarial will is the safest and most advisable option. The holographic will is suited to urgent situations but carries risks of formal invalidity and legal challenge. A lawyer should advise on the substantive content (forced shares, improvement allocations, substitutions, legacies) in order to avoid partial nullity or subsequent disputes.

Lexiel enables searches of Supreme Court case law on the validity of wills, disinheritance, and forced heirship, with verified citations.