Making a will in case of an epidemic

In exceptional cases, such as the present, there are alternative means to the open will before a Notary Public through which the testator can order his last will and testament.

The significant restrictions on mobility caused by the declaration of the state of alert, as a result of the health emergency caused by COVID-19, have led to significant and intense limitations in many aspects of daily life and, consequently, also in legal traffic.

In this regard, the Instruction of the Directorate General for Legal Security and Public Faith (formerly the Directorate General for Registers and Notaries) of 15 March 2020 establishes criteria to guarantee the adequate provision of the notarial public service.

It states that it is only obligatory (for the notary) to attend to those actions of an urgent nature, as well as those determined by the government, and the notary must abstain from summoning interested parties for actions that do not have this nature and in any case the actions must be carried out exclusively in the notary’s office.

This instruction has been affected by Royal Decree-Law 10/2020 of 29 March, since this law regulates recoverable paid leave for employed personnel, which is obligatory for all employed personnel who provide services in public or private sector companies or entities that carry out non-essential activities classified as such in the annex to the Royal Decree-Law itself, in order to reduce the mobility of the population in the context of the fight against COVID-19

Paragraph 17 of the Annex provides, in respect of employed persons, “those who provide services in notaries’ offices and registries for the performance of essential services laid down by the Directorate-General for Legal Security and Public Order”

In accordance with that provision, the Instruction of the Directorate-General for Legal Security and Public Trust of 30 March 2020 states that, for the purposes of paragraph 17 of the Annex to Royal Decree-Law No 10/2020, services relating to the following activities, among others, are essential

• Those deriving from the non-interruption to date of civil computations, as well as acts of a personal nature of an urgent nature.
• In general, any other notarial activity necessary for the development of activities that are essential, as provided for in Royal Decree Law 10/2020 of 29 March 2020, which must always be interpreted strictly.

Therefore, the possibility of going to a notary’s office is seriously reduced to cases of urgent and essential intervention, while any person who goes to a notary’s office must be in a position to prove that such a move is fully justified because he is acting in the exercise of an essential activity, expressly exempted from the restrictive regime of the aforementioned Royal Decree Law.

In the light of the above, the granting of a will could be covered under the umbrella of urgent personal acts. However, it is clear that granting a will on an urgent basis is a bad omen, and if we add to this the fact that the exceptional nature of the current situation is precisely due to a health emergency, with the exception of those people who have been diagnosed with a fatal prognosis but who can minimally preserve their mobility, the vast majority of wills that may currently be required to be executed will be for people affected by coronavirus or for fear of coronavirus.

In these cases, and taking into account the social confinement and distance to which the population is subjected, as well as the isolation of the people diagnosed, it will be really impossible for the people concerned to obtain the presence of a notary to formalize a will.

In view of this situation, it is convenient to emphasize the possibility of making a valid will without the need to grant it in the presence of a notary, although granting it in some of the modalities provided for and legally admitted, since it is not possible to validly formalize a will if the legal provisions are not strictly observed.

In the context in which we find ourselves, the options for ordering the person’s last will and testament, his or her succession, would pass through the following legal instruments:

• Holographic will.
• Will in case of an epidemic.
• Will in imminent danger of death.

In the first place, it should be noted that the viability of adopting one form of will or another will will depend on the autonomous civil legislation to which the testator is subject and this will be determined by his civil vicinity.

Here we are going to make a brief reference to the general system of the state Civil Code and to Catalan legislation, without taking into account the specialities of Navarre legislation (will before the parish priest and will before witnesses), Aragonese civil legislation (holographic joint will) and Basque civil legislation (“hilburuko” will or in danger of death).

Holographic will

This is a form of testamentary procedure that allows the last will of the person to be validly ordered without the intervention of a notary or witnesses, with the testator writing in his ownhandwriting his forecasts for the cause of death, that is, with the person concerned writing his own will.

Within the scope of the State Civil Code, holographic wills can only be granted by persons of legal age, while for persons subject to Catalan legislation, they can also be granted by emancipated persons, which means that they can be granted from the age of 16.

In order for the holographic will to be valid (state-wide) it must be written in full by the testator, signed by him/her and the year, month and day on which it is granted must be clearly expressed. In Catalonia, it is also required to be written and signed by the testator, but, in addition to the date, the place of execution must also be indicated. All of these requirements are essential for validity, so that the omission of any one of them will result in the nullity of the will and that the succession will be governed by the previous will validly granted by the testator and, if it does not have one, the intestate succession will be opened.

The requirement of an autograph by the testator implies the invalidity, in any case, of holographic wills made by means of electronic or mechanical devices, as well as those written by a third party, even if it is in accordance with the testator’s dictum. It is essential that the will, for its validity, be written in the testator’s own handwriting.

Both in Spain and in Catalan, in the event that the will contains words that are crossed out, amended, added or between lines, the grantor must save them with his signature in all cases. The Supreme Court, in the case of words crossed out or added that are not saved with the signature of the testator, understands that it only annuls the will if those unsaved words affect essential elements of the will. Otherwise, only the words crossed out or added that are not countersigned by the testator’s signature are considered invalid.

At state level, the holographic will must be notarised and presented to a Notary Public within five years of the death of the testator, who must certify its authenticity (warning). In Catalonia, however, the will expires if it is not presented to the competent notary within four years of the testator’s death.

As has been noted, it is essential for the validity of this type of will that all the requirements set out in the law are scrupulously complied with, as otherwise it will be invalid.

It should also be noted that, although it does not require a special form of wording or solemnity, it is essential that the will to test is clear from the writing.

Finally, it should be clarified that this form of will produces the effects proper to all wills, not being complementary or accessory to any previous one, and therefore produces the revocation of previous wills, unless the testator subject to state civil law expresses his will that a previous will subsists in whole or in part. In the case of Catalonia, it will also be advisable to specify that a holographic will is being expressly granted, given that in Catalonia, unlike what is provided for at the state level, other instruments for the organisation of the last will coexist with the will, such as codicils and testamentary memoranda, which do have a complementary nature or can partially modify a previous will (in the case of the codicil), and therefore to avoid doubts about the scope of the new will and its effects (whether or not it revokes another previous will) it will be advisable to specify this clearly.

Will in the event of an epidemic

These types of wills are characterized by the relaxation of the formalization requirements in view of the special context that motivates their granting.

In this regard, the Civil Code allows a will to be granted in the event of an epidemic without the intervention of a Notary Public before three witnesses over the age of 16, which may be done in writing or even orally when the witnesses, the Code states, “do not know how to write”. I understand that it would be tantamount to not knowing how to write if circumstances do not permit it or if there is a real physical impossibility for the witnesses to write the will.

Bearing in mind that the World Health Organization on 11/03/2020 qualified as a pandemic the health emergency arising from the expansion of COVID-19 and that several royal decrees-state laws and ministerial orders refer in their statements of reasons to that declaration, these wills that had been formalized since 11/03/2020should be understood as valid.

As for witnesses, it is not sufficient that they be over 16 years of age, but they must comply with the requirements set out in the general rules. That is to say:

1. They must be at least 3.
2. Over 16 years of age.
3. They must understand the language of the testator.
4. They must have the necessary discernment (sufficient mental capacity).
5. The heirs or legatees instituted in the will itself cannot be witnesses, nor their spouses or relatives within the fourth degree of consanguinity or second degree of affinity, with the exception of legatees or their spouses or relatives when the bequest is of some movable object or quantity of little importance in relation to the hereditary estate.
6. Witnesses must know the testator and must endeavour to ensure that he or she has sufficient capacity to testify.

This form of testing is not possible in Catalonia, as it is expressly forbidden to grant wills exclusively in the presence of witnesses.

It should be borne in mind that such a will will be ineffective if two months have passed since the epidemic ceased and the testator has not died within that time. Therefore, if the testator dies after this period, his succession will be governed by the valid will before the one granted in the event of an epidemic, and if he has not granted one, the intestate succession will be opened.

Likewise, if the testator dies during the epidemic, the will must be notarized within three months of the death, regardless of whether it was granted in writing or verbally.

Will in imminent danger of death

The regime of this will is the same as the will in case of an epidemic, with the only speciality being that it must be granted in the presence of 5 witnesses, instead of the 3 in the will in case of an epidemic. The above requirements apply to the witnesses to this will.

The will is ineffective if two months have passed since the danger of death ceased and the testator has not died within that time.

As in the previous case, in Catalonia this form of testing is not possible, due to the prohibition previously expressed of not being able to grant a will exclusively before witnesses.

Conclusion

A person subject to Catalan civil law may only opt for the holographic will as an alternative to the notarial will.

On the other hand, a person subject to state civil legislation (Common Civil Code) may simultaneously opt for a holographic will, if he or she is able to write it, for a will in the event of an epidemic before 3 witnesses (doctors or hospital health staff, for example) or for a will due to imminent danger to life before 5 witnesses (if this is the case). The difference is that, if the person making the will does not finally die, these last two wills will lose their validity and will expire within the time limits indicated, while in the case of the holographer the will is not subject to a time limit, without prejudice to the need to have it notarised within 5 years of the death of the testator, in the case of persons subject to common civil law, or 4 years, in the case of persons subject to Catalan civil law.

Therefore, as we have seen, there are alternatives to the formalisation of a will before a Notary Public. The analysed wills may contain the provisions that the testator himself would consider appropriate, with the same scope as in the will opened before a Notary Public, although, due to the requirements and formalities established by law, it is advisable to seek due advice in order to guarantee the effectiveness of the will and avoid problems in the future as a result of possible defects or omissions in its formalisation.