EDITING |
The coronavirus has also legally applied Article 701 of the Civil Code, which had never been applied in the 131 years of our Civil Code's existence.
The existence of an epidemic in Spain is notorious (in fact practically in every corner of the planet, as it was declared an international pandemic by the World Health Organization on March 11, 2020) and therefore the state of alarm was declared for the aforementioned Royal Decree 463/2020, of March 14. Therefore, in Spain we will understand that there is an epidemic as long as that state of alarm is in force, which began on March 14, 2020, including the possibility that there will surely be new extensions.
We quote the article 701 verbatim: "In case of epidemic, a will may also be granted without the intervention of a Notary before three witnesses over sixteen years old.".
The aforementioned article allows us to make a will without the need for a public official, even if we are hospitalized. Therefore, it will be possible to make a will, to later certify it at a notary's office, complying with the following requirements set forth in article 681 of that code:
- Witnesses must be over 16 years old.
- Understanding the language of the testator
- Having the necessary discernment to carry out the testamentary act
- To know the testator and judge their capacity
The Civil Code provides for some exceptions in its article 682:
- Heirs and legatees in the instituted cannot be witnesses
- Their spouses, nor their relatives within the fourth degree of consanguinity or second degree of affinity.
It will also be necessary to take into account other articles (701-704) to grant a will in this exceptional pandemic situation:
- The will will be valid, even if the witnesses cannot write
- If it is not possible to have a written record of the will, due to certain circumstances, the memory of the witnesses will be accepted.
- Analog or digital means that register it will also be valid.
- The will must subsequently be transferred to a notary, to certify its validity, when the exceptional circumstances end.
- The will will not be valid if, two months after it was made, a notary has not been consulted to elevate it to a public deed, this period will count from when the testator has come out of their life-threatening situation, the pandemic has ceased
- In the event that the testator passes away, the will will also become ineffective if, within three months following the death, one does not go to the notary to validate it.
- Wills granted without the authorization of the notary will be ineffective if they are not elevated to a public deed and protocolized in the manner provided for in notarial legislation.
- It is important to note that it is not necessary for the testator to be affected by the epidemic, that is, it is not necessary for them to be infected with coronavirus. It is enough that they are in the area affected by the disease.
Additionally, there is the possibility of making other types of wills without the need for a notary such as: the holographic will
