On last will
Section One. On the capacity to dispose of goods pursuant to a last will
All persons who are not explicitly forbidden to do so by the law may make a last will and testament.
The following persons may not make a last will and testament:
1. Persons under fourteen years of age of either gender;
2. Any person who usually or accidentally is not of sound mind.
The last will and testament made before the person’s insanity shall be valid.
If a person incapacitated according to a judgment which does not contain a ruling concerning his capacity to make a last will were to wish to make a last will, the Notary Public shall appoint two physicians to examine him previously, and shall not authorise it unless they vouch for his capacity.
The only factor which shall be taken into account to assess the testator’s capacity is his condition at the time of making the last will.
Section Two. On last wills & testaments in general
An act whereby a person disposes of all his estate or part thereof for after his death is called a last will.
A testator may dispose of his goods by inheritance or by legacy.
If there were to be any doubt, a provision shall be valid as a universal disposal or inheritance even if the testator did not materially use the word heir, if his intention on this matter is clear.
Two or more persons may not make a last will and testament jointly or in the same instrument, irrespective of whether they do so for their reciprocal benefit, or to the benefit of a third party.
Making a last will and testament is a strictly personal: it may not be delegated, in whole or in part, to the discretion of a third party, nor may it be made by means of an attorney or proxy.
Also, the subsistence of the appointment of heirs or legatees may not be left at the discretion of a third party, and neither may the specification of the portions in which they are to succeed, if they have been called by name.
The testator may entrust to a third party the distribution of the amounts bequeathed generally to specific classes, such as relatives, the poor or charitable establishments, and the selection of the persons or establishments to which they are to be allocated.
Any provision made by the testator pertaining to the appointment of an heir, bequests or legacies, with reference to private instruments or papers which after his death appear within or without his domicile, shall be null and void if such instruments or papers do not meet the requirements provided for holographic wills and testaments.
A last will and testament made under violence, fraudulent misrepresentation or fraud shall be null and void.
A person who, by fraudulent misrepresentation or fraud or with violence, were to prevent another person, of whom he is the intestate heir, from freely making a testamentary provision, shall be deprived of his inheritance rights, without prejudice to any criminal liability in which he may have incurred.
Any testamentary provision shall be construed according to the literal meaning of its words, unless it were to clearly appear that the testator’s intention was another. In the event of doubt, what seems better to conform to the testator’s intention, according to the wording of the last will and testament, shall be observed.
The testator may not forbid the contesting of his last will and testament in cases where it is null and void pursuant to the law.
Section Three. On the form of last wills & testaments
The last will may be common or special.
A common last will and testament may be holographic, open or closed.
A military last will and testament, a maritime last will and testament and a last will and testament made in a foreign country shall be deemed special last wills and testaments.
The last will shall be called holographic if the testator writes it himself in the form and with the requisites set forth in Article 688.
The last will shall be open if the testator were to declare his last will in the presence of the persons who are to witness the act, who are made aware of the provisions made therein.
The last will shall be closed if the testator, without revealing his last will, declares that it is contained in the document presented to the persons who are to witness the act.
The following persons may not act as witnesses in last wills and testaments:
1. Minors, save as provided in Article 701;
2. (without content)
3. Persons who do not understand the language of the testator;
4. Persons who lack the soundness of mind to complete the formalities related to the last will and testament;
5. The spouse or relatives within the fourth degree of consanguinity or the second degree of affinity of the Notary Public present and persons who have an employment relationship with the latter.
In an open testament, heirs and legatees appointed therein, their spouses, or the relatives of the former within the fourth degree of consanguinity or the second degree of affinity may also not be witnesses.
This prohibition does not include legatees or their spouses or relatives if the legacy impinges a movable object or an amount of scarce importance in relation to the estate.
For a witness to be declared ineligible, it is necessary that the cause of his incapacity were to exist at the time of making the last will and testament.
If the testator were to express his will in a language not known to the Notary Public, the presence of an interpreter chosen by the former shall be required to translate the testamentary provision to the official language used by the Notary Public in the place of execution. The instrument shall be written in both languages, with the indication of which language was employed by the testator.
The open last will and testament and the deed of the closed last will and testament shall be written in the foreign language in which the testator has expressed himself and in the official language used by the Notary Public, even if the latter were to know the former language.
The Notary Public must know the testator and, if he does not know him, he shall identify his person by means of two witnesses who know him and who are known to the same Notary Public, or by means of documents issued by the public authorities for the purpose of identifying persons. The Notary Public shall also ensure that, in his opinion, the testator has the necessary legal capacity to make a last will and testament.
In the cases of Articles 700 and 701, the witnesses shall have the obligation of knowing the testator, and shall attempt to ascertain his capacity.
If it were not possible to identify the person of the testator as provided in the preceding Article, the Notary Public, or the witnesses, as the case may be, shall declare such circumstance, with mention of the documents submitted by the testator for such purpose and his personal characteristics.
If a last will and testament were to be challenged on such grounds, the person upholding its validity shall have the burden of proving the testator’s identity.
A last will and testament in whose execution the formalities respectively established in this Chapter have not been observed shall be null and void.
Section Four. On holographic last wills & testaments
A holographic last wills and testaments may only be made by persons who are of legal age.
In order to be valid, this last will and testament shall be written out in full and signed by the testator, with expression of the year, month and day on which it is made.
If it were to contain words which have been crossed out, amended or written between the lines, the testator shall validate such amendments with his signature.
Aliens may make a holographic last will and testament in their own language. Article 689
A holographic last will and testament shall be notarised by submission to a Notary Public, within five years counting from the death of the testator. The Notary Public shall draw up the notarised deed of putting on record pursuant to the notarial regulations.
The person in whose possession such a last will and testament has been consigned shall submit it to the competent Notary Public within ten days of the day he becomes aware of the death of the testator. If he were to fail to do so, he shall be liable for any damages caused by such delay.
Any person with an interest in the last will and testament as heir, legatee, executor or in any other capacity may also submit it.
After a holographic last will and testament has been submitted, and the death of the testator has been evidenced, it shall be authenticated pursuant to the notarial legislation.
After a holographic last will and testament has been authenticated, and the identity of the author has been evidenced, it shall be notarised.
If the Notary Public deems the truthfulness of a last will and testament to have been proven, he shall execute the public deed of putting on record, wherein the actions taken and, as applicable, any observations made shall be recorded.
If the last will and testament is not authenticated, due to sufficient confirmation of the identity of the executing party not being provided, the file shall be closed without the notarisation thereof.
Whether or not the holographic last will and testament is notarised, any interested parties who disagree may exercise their rights via the relevant judicial proceedings.
Section Five. On open last wills & testaments
An open last will and testament shall be made before a Notary Public qualified to act in the place where it is made.
Only the cases explicitly established in the same Section shall be excepted from this provision.
The testator shall express, verbally or in writing, his last will and testament to the Notary Public. Upon the Notary’s drafting the last will and testament in accordance with such statements, and with expression of the place, year, month, day and time of its execution, and after warning the testator of his right to read it by himself, the Notary Public shall read it out loud for the testator for him to declare whether it conforms to his intentions. If so, it shall be signed in the same act by the testator who is able to do so and, as the case may be, by the witnesses and other persons required to concur.
If the testator declares that he does not know how to or is unable to sign, one of the two witnesses shall do it for him at his request.
The Notary Public shall attest knowing the testator or having duly identified him or, otherwise, shall make the statement provided in Article 686. He shall also note that, in his opinion, the testator has the necessary legal capacity to make a last will and testament.
Two suitable witnesses shall be present in the act of making the last will and testament:
1. If the testator declares that he does not know how to or is unable to sign the last will and testament.
2. If the testator, although he is able to sign it, is blind, or declares that he does not know how to or is unable to read the last will and testament by himself.
If the testator who does not know how to or is unable to read were to be entirely deaf, the witnesses shall read the testament in the presence of the Notary Public, and shall declare that it coincides with the declared intention.
3. If the testator or the Notary Public request it.
The following persons shall also be present at the act of making the last will and testament:
1. The witnesses of the testator’s identity, if any, who may also act as witnesses of the last will and testament itself;
2. The physicians who have examined the incapacitated testator;
3. The interpreter who has translated the last will and testament of the testator to the official language employed by the Notary Public.
All formalities stated in this Section shall be solemnised in a single act, which shall begin with the reading of the last will and testament, without any interruption being allowed, unless it is motivated by a fleeting incident.
If the testator were to be in imminent danger of death, a last will and testament may be executed before five suitable witnesses, without the need for a Notary Public.
In the event of an epidemic, a last will and testament may also be executed without intervention of a Notary Public, before three witnesses older than sixteen years only.
In the cases of the two preceding Articles, the last will and testament shall be written down, if possible; if not, the last will and testament shall be valid even if the witnesses do not know how to write.
A last will and testament made pursuant to the provisions of the three preceding Articles shall be ineffective if two months were to elapse from the time if the testator is no longer in danger of death, or the epidemic has ceased.
If the testator were to die within such period, the testament shall also be ineffective if, within three months following the death, the interested parties do not appear before the competent Notary Public to notarise it, irrespective of whether it was executed in writing or verbally.
Last wills and testaments made without the intervention of a Notary Public shall be ineffective if they are not notarised in a public deed and put on a notarial record as provided in the notarial legislation.
Upon an open last will and testament’s being declared null and void as a result of not observing the solemnities set forth for each specific case, the Notary Public who has witnessed it shall be liable for any damages incurred if the fault were to result from his malice or inexcusable negligence or ignorance.
Section Six. On closed last wills & testaments
A closed last will and testament shall be executed in writing.
If the testator were to write it in his own hand, he should put his signature at the end.
If it were to be written by any mechanical means or by another person at the testator’s request, the latter shall sign all pages thereof and at the end of the last will.
If the testator does not know how to or is unable to sign, another person shall do so at his request at the end and in all pages thereof, stating the cause of the impossibility.
In any event, before his signature, any words amended, crossed out or written between the lines shall be validated.
The following solemnities shall be observed in the execution of the closed last will and testament:
1. The paper which contains the last will and testament shall be put inside a closed and sealed envelope, so that the former may not be taken out without breaking the latter.
2. The testator shall appear with the closed and sealed last will and testament or shall close it and seal it in the act, before the Notary Public who is to witness it.
3. The testator shall represent, in the presence of the Notary Public, by himself or by means of the interpreter provided in Article 684, that the envelope which he submits contains his last will and testament, detailing whether it is written and signed by him, or whether it is written in another’s hand or by any mechanical means and signed at the end and in all pages thereof by him or by another person at his request.
4. On the envelope of the last will and testament, the Notary Public shall draw up the corresponding deed of execution, detailing the number and mark of the seals with which it has been closed, and attesting that he knows the testator or has identified his person in the manner provided in Article since 685 and 686, and that the testator, in his opinion, has the necessary legal capacity to make a last will and testament.
5. Having drawn and read the deed, the testator who is able to do so and, as the case may be, the persons who are present shall sign it, and the Notary Public shall attest it with his stamp and signature. If the testator were to declare that he does not know how to or is unable to sign, one of the two suitable witnesses who shall be present in this case shall do so for him and at his request.
6. The deed shall also express this circumstance, as well as the place, time, day, month and year of execution thereof.
7. Two suitable witnesses shall be present in the act of execution if the testator or the Notary Public were to so request.
Blind persons and persons who do not know how to or are unable to read may not make a closed last will.
Persons who cannot express themselves verbally, but who are able to write, may make a closed last will and testament, observing the following formalities:
1. The last will and testament shall be signed by the testator. As concerns, the remaining requirements, the provisions of Article 706 shall apply.
2. Upon submitting it, the testator shall write on the upper part of the envelope, in the presence of the Notary Public, that inside it is his last will and testament, stating how it is written and that it has been signed by him.
3. The deed of execution shall be extended below the words written by the testator, and the Notary Public shall attest having complied with the provisions of the preceding number and the remaining provisions of Article 707 which apply to the case at hand.
After notarisation of the closed last will and testament, the Notary Public shall deliver it to the testator, after including in his ordinary official files an attested copy of the deed of execution.
The testator may keep in his possession the closed last will and testament, or entrust it to the care of a trusted person, or consign it in the possession of the authorising Notary Public, to be kept in his files.
In this last case, the Notary Public shall give the testator a receipt and shall enter into his ordinary files, in the margin or below the copy of the deed of execution, a note that the last will and testament is in his possession. If the testator were to subsequently withdraw it, he shall sign a receipt below such note.
1. A person who holds in his possession a closed last will and testament shall submit it to the competent Notary Public within ten days of learning of the death of the testator.
2. The authorising Notary Public of a closed last will and testament, which has been submitted by the testator, shall notify the surviving spouse, descendants and ascendants of the testator and, in their absence, any collateral relatives to the fourth degree, of the existence of the last will and testament within ten days of learning of his death.
3. In the previous two cases, if the identity or address of such persons is not known, or that their existence is unknown, the Notary Public shall arrange the publication established under the notarial legislation.
Failure to comply with this duty or with the duty to present the last will and testament by the party that has it in his possession or by the Notary Public shall render them liable for any damages resulting.
A person who, through malice, were to fail to submit the closed last will and testament in his possession within the period provided in the preceding Article, in addition to the liability provided therein, shall lose any right to the inheritance, if he were to be an intestate heir or as testate heir or legatee.
This same penalty shall be incurred by the person who maliciously were to remove the closed last will and testament from the testator’s domicile or that of the person in whose custody or deposit it has been left, and by the person who hides it, breaks it or otherwise renders it useless, without prejudice to any applicable criminal liability.
The provisions of notarial legislation shall be observed as to the opening and notarisation of a closed last will and testament.
A closed last will and testament shall be null and void if the formalities set forth in this Section were not observed in its execution; and the Notary Public who attested it shall be liable for any damages if it is proven that the fault resulted from his malice, inexcusable negligence or ignorance. The aforesaid notwithstanding, it shall be valid as a holographic last will and testament if it is entirely written and signed by the testator and if it meets the remaining conditions inherent to this kind of last will and testament.
Section Seven. On military last will
In a time of war, any soldiers in a campaign, volunteers, hostages, prisoners and other individuals employed in the army, or following it, may make a last will and testament before an Official who has, at least, the rank of Captain.
This provision shall apply to individuals in an army which are in a foreign country.
If the testator were to be ill or wounded, he may make the last will and testament before the Chaplain or Physician who attends him.
If he were to be with a detachment, he may make the last will and testament before the commander thereof, even if he is a subaltern.
In all the cases mentioned in this Article, the presence of two suitable witnesses shall always be necessary.
The persons referred to in the preceding Article may also make a closed last will and testament before a War Commissary, who shall, in this case, perform the duties of a Notary Public, observing the provisions of Articles 706 et seq.
Last wills and testaments made pursuant to the two preceding Articles shall be forwarded as soon as possible to the Army Staff Headquarters and by the latter to the Ministry of Defence.
The Ministry, if the testator has died, shall forward the last will and testament to the relevant Notary Public of the deceased’s last domicile, and, if such domicile were to not know, to the Association of Notaries Public of Madrid.
The Association of Notaries Public shall forward the last will and testament to the competent Notary Public of the deceased’s last domicile. Once it is received by the Notary Public, he shall inform the heirs and other parties interested in the succession of its existence, in order that they might appear before him with a view to notarising it pursuant to legal provisions.
The last wills and testaments mentioned in Article 716 shall become void four months after the testator ceases to be part of the campaign.
During a battle, assault, combat and, generally, in any imminent danger of war actions, a military last will and testament may be made verbally before two witnesses.
The aforesaid notwithstanding, this last will and testament shall become ineffective if the testator were to save himself from the danger in consideration of which he made the last will and testament.
Even if he did not save himself, the last will and testament shall be ineffective if it is not formalised by the witnesses before the War Auditor or judicial official following the army, subsequently proceeding in the manner provided in Article 718.
If the military last will and testament were to be a closed last will and testament, the provisions of Article 706 and 707 shall be observed; nevertheless, it shall be executed before the Official and the two witnesses required for the open last will and testament pursuant to Article 716, and all of them shall sign the deed of execution, as well as the testator, if he were to be able to.
Section Eight. On maritime last will
Open or closed last wills and testaments made by persons on board in a maritime journey, shall be executed in the following manner:
If the vessel were to be a warship, before the Paymaster or the person performing his duties, in the presence of two suitable witnesses, who can see and understand the testator. The Commander of the vessel, or the person acting in his stead, shall, further, give his approval.
In merchant ships, the last will and testament shall be witnessed by the Captain, or the person acting in his stead, with the attendance of two suitable witnesses.
In both cases, the witnesses shall be chosen amongst the passengers, if any; but one of them, at least, must be able to sign, and shall do so for himself and for the testator, if the latter does not know how to or is unable to do so.
If the last will and testament were to be an open last will and testament, the provisions of Article 695 shall likewise be observed, and, if it were to be a closed last will and testament, the provisions of the sixth Section of this Chapter shall be found, excluding the provisions relating to the number of witnesses and the intervention of the Notary Public.
The last will and testament of the Paymaster of a warship and of the Captain of a merchant ship shall be witnessed by the person who is to substitute them in their post, observing, for all else, the provisions of the preceding Article.
Open last wills and testaments made in the high seas shall be kept in the Commander’s or Captain’s custody, and a mention thereof shall be written in the Logbook.
The same mention shall be made of holographic and closed last wills and testaments. Article 725
If the vessel were to arrive at a foreign port where there is a diplomatic or consular agent of Spain, the Commander of the warship, or the Captain of the merchant ship, shall deliver to such agent a copy of the open last will and testament, or the deed of execution of the closed last will and testament, and of the note taken in the Logbook.
The copy of the last will or the deed shall include the same signatures as the original, if the persons who signed it are alive and on board; otherwise, it shall be witnessed by the Paymaster or Captain who attested the last will, or the person acting in their stead, and shall also be signed by those of the persons who took part in the last will who are currently on board.
The diplomatic or consular agent shall procure that the formality of delivery is laid down in writing and, having closed and sealed the copy of the last will or that of the deed of execution in the event of a closed last will, shall forward it, together with the note taken in the Logbook, to the Minister of the Navy via the competent channels, and the Minister shall order its deposit in the Files of his Ministry.
The Commander or Captain who delivers the copy shall receive from the diplomatic or consular agent a certificate of having performed such delivery, and shall make a note thereof in the Logbook.
When the vessel, whether a warship or a merchant ship, reaches the first port of the Kingdom of Spain, the Commander or Captain shall deliver the original last will, closed and sealed, to the local naval Authority, with a copy of the note taken in the Logbook; and, if the testator has died, a certificate evidencing the death.
Delivery shall be evidenced in the manner provided in the preceding Article, and the Naval Authority shall forward it all without delay to the Minister of the Navy.
If the testator has died and the last will is an open last will and testament, the Minister of the Navy shall perform the actions provided in Article 718.
If the last will has been executed by an alien on board a Spanish vessel, the Minister of the Navy shall forward the last will to the Minister of State, to forward it as applicable by diplomatic channels.
If the last will were to be holographic, and the testator has died during the journey, the Commander or Captain shall keep the last will and testament in his custody, making a mention thereof in the Logbook, and shall deliver it to the local naval Authority, in the manner and for the purposes provided in the preceding Article, when the vessel arrives at the first port of the Kingdom of Spain.
The same should be done if the last will is a closed last will if the testator had it in his possession at the time of his death.
Open and closed last wills and testaments made under the provisions of this Section shall become void after four months, counting from the time when the testator disembarked at a point where he can make a last will in an ordinary manner.
If there were to be a danger of shipwreck, the provisions of Article 720 should apply to the crew and passengers of warships or merchant ships.
Section Nine. On last wills & testaments made in a foreign country
Spaniards may make a last will outside Spain, subject to the forms set forth by the laws of the country in which they find themselves.
They may also make a last will in the open sea during their journey in a foreign vessel, subject to the laws of the nation to which the vessel pertains.
They may also make a holographic last will, under Article 688, even in countries whose laws do not admit such a last will.
A joint last will, forbidden by Article 669, made by Spaniards in a foreign country shall not be valid, even if permitted by the laws of the nation where it was made.
Spaniards who are in a foreign country may also make an open or closed last will in a foreign country before the diplomatic or consular official of Spain who performs notarial duties at the place where it is made.
In these cases, all formalities outlined in Sections five and six of this Chapter shall be respectively observed.
The diplomatic or consular agent shall forward a copy of the open last will or of the deed of execution of the closed last will, attested with his signature and seal, to the Ministry of State, to be consigned in its Files.
The diplomatic or consular agent in whose possession a Spaniard has consigned his holographic or closed last will shall forward it to the Ministry of State upon the death of the testator, together with a death certificate.
The Ministry of the State shall publish in the “Madrid Gazette” news of the death, so that parties interested in the estate may collect the last will and notarise it in the manner provided.
Section Ten. On the revocation & ineffectiveness of last wills & testaments
All testamentary provisions are inherently revocable, even if the testator states in the last will his intention or resolution not to revoke them.
Clauses which annul future provisions and those where the testator ordered the invalidity of the revocation of the last will unless it were performed using certain words or signs shall be deemed inexistent.
The last will may not be revoked in the whole or part unless the solemnities required to make a last will are observed.
A prior last will is revoked ipso iure by a subsequent valid last will if the testator does not express in the latter his intention to make the former subsist in whole or in part.
Notwithstanding the preceding, a prior last will shall recover its legal force if the testator were to revoke the subsequent last will and testament subsequently, and were to explicitly declare his intention fort the former last will to be valid.
The revocation shall be effective even if the second last will were to become void as a result of the incapacity of the heir or legatees appointed therein, or as a result of renunciation by the former or the latter.
The recognition of a child shall not lose its legal force even if the last will in which it was made were revoked, or it were not to contain other provisions or the other provisions contained in the last will were to be null and void.
A closed last will which appears at the testator’s domicile with the cover or seals broken, or with the signatures authorising it erased, scratched out or amended shall be deemed revoked.
Notwithstanding the foregoing, this last will shall be valid if it were to be evidenced that the damage has taken place without intention or awareness on the part of the testator, or upon the latter’s being of unsound mind; the aforesaid notwithstanding, if the cover or the seals are broken, for the last will to be valid, it shall also be necessary to prove its authenticity.
If the last will were to be in possession of another person, if the cover or the seals were to be broken the defect shall be deemed be such person’s fault, and the last will shall not be valid unless its authenticity is proved; and, if both were to be unharmed, but the signatures have been erased, scratched out or amended, the last will shall be valid unless it is evidenced that the document was delivered by the testator in such condition.
Last wills and testaments shall become void, and testamentary provisions shall be ineffective, in whole or in part, only in the cases explicitly provided in this Code.
Section One. On capacity to succeed testate or intestate
Persons who are not incapacitated by law may succeed testate or intestate.
The following individuals are incapable of succeeding:
1. Abortive creatures, construing as such those which do not meet the requirements stated in Article 30;
2. Associations or Corporations which are not permitted under the law. Article 746
Churches and ecclesiastical chapters, provincial governments and provinces, town councils and municipalities, hospitals, charitable and public instruction establishments, associations authorised or recognised by the law and other legal persons may acquire by last will and testament pursuant to the provisions of Article 38.
If the testator were to dispose of all or part of his estate for religious services or charitable works to the benefit of his soul, in an indeterminate manner and without specifying the allocation thereof, the executors shall sell his goods and shall distribute the amount thereof, giving half to the local Bishop so that he may allocate it to the aforesaid services and the requirements and needs of the Church, and the other half to the relevant Civil Governor to give to the charitable establishments of the deceased’s domicile, and, in the absence thereof, those of the province.
The provision made in favour of a public establishment subject to a condition or imposing an encumbrance shall only be valid with the Government’s approval.
Provisions made in favour of the poor in general, without designating specific persons or locations, shall be deemed limited to the poor of the domicile of the testator at the time of his death unless it were to clearly result that his intention was another.
The qualification of who are the poor and the distribution of the goods shall be made by the person appointed by the testator or, in the absence thereof, by the executors and, in the absence thereof, by the parish priest, the mayor and the Municipal Judge, who shall resolve by majority vote any doubts which may arise.
The same shall be done if the testator has disposed of his goods in favour of the poor of a specific parish or village.
Any provision in favour of an unidentified person shall be null and void, unless such person may become identified as a result of any event.
A general provision made in favour of the testator’s relatives shall be deemed made in favour of those nearest in degree.
Testamentary provisions made by the testator during his last illness in favour of the priest who confessed him, the latter’s relatives to the fourth degree, or his church, chapter, community or institution shall have no force or effect.
A testamentary provision in favour of the guardian or conservator of the testator shall have no force or effect, unless it has been made after final approval of the accounts or, if it were not necessary to provide accounts, after the extinction of the guardianship or conservatorship.
Notwithstanding the preceding, bequeaths made in favour of the guardian or conservator who is an ascendant, descendant, brother, sister or spouse of the testator shall be valid.
The testator may not dispose of all or part of his estate in favour of the Notary Public attesting his last will, or the spouse, relatives or relatives by marriage of the latter up to the fourth degree, with the exception provided in Article 682.
This prohibition shall apply to witnesses of an open last will, executed with or without a Notary Public.
The provisions hereof shall also apply to witnesses and persons before whom special last wills and testaments are executed.
A testamentary provision in favour of an incapable person shall be null and void, even if it were to be disguised in the form of a contract for valuable consideration, or were to be made using another person.
The following individuals are incapable of succeeding on the grounds of unworthiness:
1. An individual who is convicted by a final judgment for an attempt to take the life, or
condemned to a serious penalty for causing bodily injury or having habitually exercised physical or psychological violence within the family environment to the testator, his spouse, the person with whom he is partnered in an emotional relationship akin to marriage, or any of his descendants or ascendants.
2. A person who is convicted by a final judgment of criminal offences against freedom, moral integrity and sexual indemnity, if the injured party is the testator, his spouse, the person with whom he is partnered in an emotional relationship akin to marriage, or any of his descendants or ascendants.
Furthermore, the person convicted by a final judgment and condemned to a severe penalty for committing a criminal offence against family rights and obligations as regards the inheritance of the aggrieved party.
Besides, the person deprived of parental responsibility by a final judgment, or removed from the exercise of guardianship or family foster care of a minor or incapacitated person for reasons attributable to him, as regards the inheritance thereof.
3. A person who has accused the testator of a criminal offence for which the law establishes a serious penalty, if the accusation is declared to be a false.
4. The adult heir who, being aware of the testator’s violent death, were not to have reported it within one month to the authorities unless the authorities have already acted on their own motion.
This prohibition shall cease in cases where, according to the law, there is no obligation to make an accusation.
5. A person who, by threats, fraud or violence, were to force the testator to make a last will or to change it.
6. A person who, by the same means, were to prevent another from making a last will, or from revoking a last will previously made, or were to replace, hide or alter another subsequent last will.
7. As regards the succession of a disabled person, any persons with a right to the inheritance that have not provided the due care, the forms of which are construed as those regulated under Articles 142 and 146 of the Civil Code.
The grounds of unworthiness shall cease to be effective if the testator was aware thereof at the time of making the last will or if, having become aware thereof later, he were to forgive them in a public deed.
The time of the death of the person whose succession is in question shall be taken into account to qualify the capacity of the heir or legatee.
Cases 2 and 3 of Article 756 shall require waiting for a final judgment, and Number 4 shall require waiting until the month provided to report the violent death has elapsed.
If the appointment of the heir or the legacy were to be conditional, the time on which the condition is met should also be taken into account.
The heir or legatee who were to die before fulfilling the condition, even if he were to survive the testator, shall not convey any rights to his heirs.
A person incapable of succeeding who, against the prohibition provided in the preceding Articles, were to have taken the goods of the estate into his possession, shall be obliged to return them with any accretions and any fruits and rents received.
If the person excluded from the inheritance as a result of incapacity were to be a child or descendant of the testator and were to have children or descendants, the latter should acquire his right to a reserved share of the estate.
No action to declare incapacity may be brought after five years from the time the incapable person has taken possession of the inheritance or legacy.
Section Two. On the appointment of an heir
A person who has no forced heirs may dispose by the last will of all his goods or a part thereof in favour of any person with the capacity to acquire them.
A person who has forced heirs may only dispose of his goods in the manner and according to the limitations outlined in Section 5 of this Chapter.
The last will shall be valid even if it does not contain the appointment of an heir, or if such appointment does not comprise all of the goods, and even if the person thus appointed were not to accept the inheritance or were to be incapable of inheriting.
In such cases, the testamentary provisions made according to the law shall be complied with, and the remainder of the goods shall pass to the intestate heirs.
Heirs appointed without designation of shares shall inherit by equal shares.
A voluntary heir who dies before the testator, a person incapable of inheriting and a person who renounces the inheritance do not convey any rights to their heirs, save as provided in Articles 761 and 857.
The expression of a false reason for appointing an heir or legatee shall be deemed as not written unless it can be deduced from the last will and testament that the testator would not have made such appointment or legacy had he been aware that such reason was false.
The expression of reason which is against the law, even if it were true, shall also be deemed as not written.
An heir appointed to inherit a certain and specific object shall be deemed a legatee.
If the testator were to appoint certain heirs individually and others jointly, for example, if he were to say: “I hereby appoint as my heirs N and N, and the children of N”, those appointed jointly shall be deemed to have been had been nominated individually, unless it were to clearly result that the intention of the testator was another.
If the testator were to appoint his siblings, and he were to have full siblings and half siblings, the inheritance shall be divided as if he had died intestate.
If the testator were to call to the succession a person and his children, they shall all be deemed to have been appointed simultaneously and not successively.
The testator shall designate the heir by his name and surnames, and, if there are two persons with the same name, he shall provide a circumstance by which the appointed heir may be identified.
Even if the testator were to have omitted the name of the heir, if the heir has been appointed so that there cannot be any doubt of who has been appointed, the appointment shall be valid.
In the last will of an adoptive parent, the generic expression child or children shall include adopted children.
An error in the name, surname or qualities of the heir shall not vitiate the appointment if the appointed person’s identity can be known for certain in another way.
If there were to be equal circumstances between persons of the same name and surname, and these are such that they do not allow identifying the appointed heir, neither shall be the heir.
Section Three. On substitution
The testator may substitute one or more persons instead of the appointed heir or heirs if they were to die before him, or were not wish to or be unable to accept the inheritance.
Simple substitution, without stating the particular case, comprises all three cases stated in the preceding Paragraph, unless the testator provides otherwise.
Parents and other ascendants may appoint substitutes for their descendants who are under fourteen, of either gender, if they were to die before reaching such an age.
The ascendant may appoint a substitute for his descendant older than fourteen years old who, according to the law, has been declared incapable as a result of insanity.
The substitution mentioned in the preceding Paragraph should become ineffective if the incapacitated person were to make a last will during a lucid interval or after having recovered his reason.
The cases of substitution mentioned in the two preceding Articles, if the substituted person were to have forced heirs, shall only be valid to the extent that they are not detrimental to the rights of such heirs as to their reserved share.
A person may be substituted by two or more persons; and, likewise, two or more persons may be replaced by a person.
If heirs appointed to unequal portions were to be reciprocally substituted, they should have the same portions in the substitution as they did in the appointment, unless the intention of the testator were to appear otherwise clearly.
The substitute shall be subject to the same liens and conditions imposed on the appointed heir, unless the testator were to have explicitly provided otherwise, or unless the liens or conditions are personal to the designated heir.
Fiduciary substitutions according to which the heir is charged to preserve and convey all or part of the estate to a third party shall be valid and effective provided that they do not go beyond the second degree of kinship, or are made in favour of persons who were alive at the time of the testator’s death.
Fiduciary substitutions may never encumber the reserved share of the estate unless they were to encumber the part of the reserved share to be divided equally amongst heirs necessarily to the benefit of a child or descendant who has been judicially incapacitated under the terms provided in Article 808. If they apply to the third of the estate destined to betterments, they may only be made in favour of descendants.
Fiduciary substitutions must be explicit to be valid.
The fiduciary trustee shall be obliged to deliver the estate to the beneficiary, without other deductions than those which correspond to legitimate expenses, credits and improvements, save as otherwise provided by the testator.
The beneficiary shall acquire rights to the succession as of the testator’s death, even if he were to die before the trustee.
The rights of the beneficiary shall pass to his heirs.
The following substitutions shall be without force and effect:
1. Fiduciary substitutions which are not provided explicitly, either by calling them
by this name, or by imposing on the substitute the strict obligation to deliver the goods to a second heir;
2. Provisions which contain a perpetual prohibition to dispose of the goods, or even a temporary prohibition beyond the limits set in Article 781;
3. Those who impose on the heir the mandate to pay to several persons successively, beyond the second degree, a certain income or allowance;
4. Those whose purpose is to leave to a person all or part of the estate to be applied or invested according to reserved instructions communicated by the testator.
The nullity of the fiduciary substitution shall not prejudice the validity of the appointment to the heirs first called; only the fiduciary clause shall be deemed as not written.
The provision whereby the testator leaves to one person all or part of the estate, and to another its usufruct, shall be valid. If several persons were to be called to the usufruct not simultaneously but successively, the provisions of Article 781 should apply.
The provision imposing on the heir the obligation regularly to invest a certain amount on charitable works, such as dowries for poor maidens, allowances for students or in favour of the poor or any charitable or public instruction establishment shall be valid subject to the following conditions:
If the lien were to be imposed on immovable goods and were to be temporary, the heir or heirs might dispose of the encumbered assets, and the encumbrance shall not be lifted until its registration is cancelled.
If the lien were to be perpetual, the heir may capitalise it and invest the capital to generate interest with a first and sufficient mortgage.
Such capitalisation and investment of the capital shall be carried out with the intervention of the Civil Governor of the province, after hearing the Public Prosecutor.
In any event, if the testator were not to have set an order for the administration and application of the charitable bequest, this shall be done by the competent administrative authority according to the laws.
All of the provisions of this Chapter concerning heirs shall also be deemed to apply to legatees.
Section Four. On the appointment of an heir or bequeathing a
legacy subject to condition or term
Both universal and particular testamentary provisions may be submitted to a condition.
Conditions imposed on heirs and legatees, as relates to matters not provided for in this Section, shall be governed by the provisions set forth for conditional obligations.
Impossible conditions and those contrary to the law or generally accepted principles of morality shall be deemed as not written and shall in no way prejudice the heir or legatees, even if the testator were to provide otherwise.
The absolute condition of not entering into a first or subsequent wedlock shall be deemed as not written unless it is imposed on the widow or widower by the deceased spouse, or by the latter’s ascendants or descendants.
Those mentioned above notwithstanding, a usufruct, use or habitation or a personal allowance or benefit may be bequeathed by legacy to any person for the time during which he remains single or widowed.
The provision made under the condition that the heir or legatee is to make any provision in his last will in favour of the testator or another person shall be null and void.
The purely discretionary condition imposed on the heir or legatee must be complied by the latter, after becoming aware of it, after the testator’s death.
The case where the condition has already been complied and cannot be repeated shall be an exception to the preceding.
If the condition were to be casual or mixed, it should be sufficient for it to be performed or complied with at any time, whether the testator is alive or dead, unless otherwise provided by the latter.
If it were to have already existed or been complied with at the time of making the last will, and the testator was unaware of it, it shall be deemed to have been met.
If he was aware of it, it should only be deemed to have been complied if its nature is such that it cannot exist or be complied once again.
The expression of the purpose of the appointment as heir or legacy, or the application to be given to the goods bequeathed by the testator, or the liens imposed by the latter, shall not be deemed to be a condition unless this appears to have been the testator’s intention.
Any goods bequeathed in this manner may be claimed without delay, and are conveyable to any heirs who provide a bond securing their compliance with the testator’s mandate, with the obligation to return the goods received, together with any fruits and interest, if they were to fail to perform this duty.
If without fault or act performed personally by the heir or legatee, the appointment as heir or the legacy mentioned in the preceding Article cannot take effect in the same terms ordered by the testator; it must be complied with other terms, as closely analogous and adjusted to his intentions as possible.
If the party interested in the fulfilment or not- fulfilment of such condition were to prevent the accomplishment thereof without fault or by an act performed personally by the heir or legatee, the condition should be deemed to have been complied.
A condition precedent shall not prevent the heir or legatee from acquiring his respective rights and conveying them to his heirs, even before verification of its fulfilment.
If the discretionary condition imposed on the heir or legatee were to be negative, or were to consist of an obligation not to do or not to give something, it shall be complied by providing a bond guaranteeing that they shall not do or give that which was forbidden by the testator and that, in the event of violation, they shall return the goods received, together with the fruits and interest thereof.
If the heir were to be appointed subject to a condition precedent, the assets of the estate shall be placed under administration, until the fulfilment of the condition or until there is a certainty that it cannot comply.
The same shall apply if the heir or legatee were to fail to provide the bond in the case of the preceding Article.
The administration mentioned in the preceding Article shall be entrusted to the appointed heir or heirs without condition if between them and the conditional heir there were to exist a right of accretion. The same shall be construed in respect of legatees.
If the conditional heir were to have no co-heirs, or, having them, there were to be no right of accretion between them, the former shall be entrusted the administration of the estate, providing a bond.
If he were to fail to provide it, the administration should be conferred upon the presumptive heir, also with a bond; and if neither one nor the other were to provide a bond, the Courts of Law should appoint a third party, who shall take charge of the estate, also providing a bond with the intervention of the heir.
The administrators shall have the same rights and obligations as the administrators of an absentee’s goods.
The designation of a day or time on which the effect of the appointment of the heir or the legacy is to begin or cease shall be valid.
In both cases, until the arrival of the term, or upon completion thereof, the intestate heir shall be deemed to have been called. Those mentioned above notwithstanding, in the first case, he shall not come into possession of the goods until he has provided a sufficient bond, with the intervention of the testate heir.
Section Five. On the reserved shares of the estate
The reserved share of the estate is the portion of goods which the testator cannot dispose of because the law has reserved them to certain heirs, who are thus called forced heirs.
The following persons are the forced heirs:
1. Children and descendants in respect of their parents and ascendants;
2. In the absence of the preceding, the parents and ascendants concerning their children and descendants;
3. The widower or widow in the manner and to the extent outlined in this Code.
Two-thirds of the estate of the father and mother constitute the reserved share corresponding to children and descendants.
The aforesaid notwithstanding, parents may dispose of one of the two-thirds which form the reserved share, to apply it as betterment in favour of their children or descendants.
If any of the children or descendants has been declared to be judicially incapacitated, the testator may establish a trust on the reserved share corresponding to the third of the estate the testator must necessary distribute equally among his descendants; the beneficiaries being the children or descendants declared to be legally incapacitated whilst the trustees being the forced co-heirs.
The remaining third may be freely disposed.
One-half of the estate of children and descendants constitutes the reserved share corresponding to parents or ascendants, save in the case where they were to concur with the widowed spouse of the deceased descendant, in which case it shall be one-third of the estate.
The reserved share reserved to parents shall be divided between both of them equally; if one of them were to have died, all of it should correspond to the surviving parent.
If the testator were not to leave a father or mother but does leave ascendants, in the same degree, from the paternal and maternal lines, the estate shall be divided in half between both lines. If the ascendants were to be of different level, the estate should correspond in full to the nearest ascendants of one line or the other.
The ascendant who inherits from his descendant goods acquired by the latter as a gift from another ascendant, or from a sibling, shall be obliged to reserve the goods acquired ipso iure in favour of relatives within the third degree, and who appertain to the line where the assets came from.
Ascendants shall succeed, to the exclusion of other persons, to objects given by them to their children or descendants who have died without issue, if the same objects
which were given were to exist in the estate. If they have been disposed of, they shall succeed to all actions held by the donee in connection in addition to that, and to the proceeds obtained if they have been sold, or to the goods for which they were exchanged, if they have been exchanged or bartered.
A testator may not deprive his heirs of their reserved share except in the cases explicitly provided in the law.
Neither may he impose over such share any encumbrance, condition or substitution of any kind, save as provided in connection with the widow’s usufruct and excepting the provisions of Article 808 in respect of judicially incapacitated children or descendants.
If the testator overrides the rights of a forced heir, this shall not prejudice the latter’s reserved share. The appointment of the heir shall be reduced before any legacies, betterments and other testamentary provisions.
The aforesaid notwithstanding, the unintentional override of the rights of children or descendants shall have the following effect:
1. If all forced heirs have been overridden, all patrimonial testamentary provisions shall be annulled.
2. Otherwise, the appointment of heirs shall be invalidated, but any bequests and betterments ordered according to any title shall be valid, to the extent that they do not impinge the forced share. Notwithstanding the preceding, the appointment of the spouse as heir shall only be annulled to the extent that it is prejudicial to the reserved shares of the estate.
Descendants of another descendant who has not been overridden shall represent the latter in the ascendant’s inheritance and shall not be deemed to have been passed over.
If the forced heirs who have been overridden were to die before the testator, the last will should have full force and effect.
Once respected the reserved shares, the provisions ordered by the testator shall have the preference in any event.
A forced heir who has been bequeathed by the testator, pursuant to any title, less than the reserved share which corresponds to him by the testator may demand that his share be supplemented.
Any renunciation or settlement regarding the future reserved share between the person obliged to give it and his forced heirs shall be null and void, and the heirs may claim their share upon the decedent’s death, but they shall bring to collation what they received in exchange for the renunciation or settlement.
Testamentary provisions which impinge the reserved share of the forced heirs shall be reduced, at the request of the heirs, to the extent that they affect such reserved share or are excessive.
To set the value of the reserved share, the value of the goods remaining at the time of the testator’s death shall be calculated, deducting any debts and liabilities, without including in the latter those which are imposed by the last will.
The value of any gifts susceptible of collation shall be added to the net value of the estate.
Gifts made to children, which are not betterments, shall be attributed to their reserved share.
Gifts made to strangers shall be attributed to the part of the estate of which the testator would have been freely able to dispose of by testamentary provision.
To the extent that they were to impinge the reserved share or were to exceed the share the testator may freely dispose of, they shall be reduced according to the provisions provided in the following Articles.
After establishing the reserved share under the two preceding Articles, the reduction shall be made as follows:
1. Gifts shall be respected to the extent that the reserved share is covered, reducing or annulling, if necessary, any bequests made in the last will.
2. The reduction of bequests shall be pro rata, without any distinction whatsoever.
If the testator were to have provided that a certain legacy shall be paid with preference to the rest, the former should suffer no reduction until after having applied the latter in full for the payment of the reserved share.
3. If the bequest were to consist of a usufruct or life annuity, whose value is deemed greater than the freely disposable share, the forced heirs may choose between complying with the testamentary provision or delivering to the legatee the share of the estate the testator could freely dispose of.
If the legacy that is subject to reduction were to consist of a good which cannot be divided easily, the good should be bequeathed to the legatee if the reduction does not reach half of its value; otherwise, it shall be for the forced heirs; but both shall pay the other the respective difference due in cash.
A legatee also entitled to a reserved share may retain the whole property, as long as its value does not exceed the amount of the freely disposable share plus his reserved share.
If the heirs or legatees do not wish to exercise the right conferred by this Article, the property shall be sold at a public auction, at the request of any of the interested parties.
The gift or legacy of a right of habitation on the habitual dwelling that its holder makes in favour of a disabled forced heir shall not be considered in the calculation of the reserved shares if, at the time of death, both were living therein.
This right of habitation shall be allocated, ipso iure, under the same conditions to any incapacitated forced heir that needs it and who was living with the deceased, unless the testator has provided otherwise or has explicitly excluded this, but its holder may prevent the other forced heirs living there so long as they need to.
The right referred to in the previous two Paragraphs shall not be conveyable.
The provisions in the first two Paragraphs shall not prevent the allocation to the spouse of the rights according to Articles 1406 and 1407 of this Code, which shall co-exist with the right of habitation.
Section Six. On betterments
The mother or father may dispose, as betterment, in favour of one or several of their children or descendants, whether by birth or adoption, of one of the two-thirds of the estate destined to the reserved share.
No encumbrances may be imposed over the betterment portion other than those outlined in favour of the forced heirs or their descendants.
No gift under a contract inter-vivos, whether a simple or onerous, made in favour of children or descendants who are forced heirs shall be deemed a betterment unless the donor has explicitly declared his intention in this regard.
The promise to make or not to make a betterment, made by public deed in a nuptial agreement, shall be valid.
The testator’s provision contrary to this promise shall be without force or effect. Article 827
Betterments, even if evidenced by delivery of goods, shall be revocable, unless made under a nuptial agreement or to a contract for valuable consideration entered into with a third party.
A bequest or legacy made by the testator to one of the children or descendants shall not be deemed a betterment unless the testator has explicitly declared this to be his intention, or if it were to exceed the freely disposable share.
The betterment may refer to a specific object. If the object’s value were to exceed a third of the estate destined to betterment and the part of the reserved share corresponding to the heir who has received the betterment, the latter shall pay the difference in cash to the remaining interested parties.
The power to effect betterment may not be entrusted to another person.
1. Notwithstanding the provisions of the preceding Article, the spouse may be granted powers in the last will and testament so that, upon the death of the testator, he may make betterments in favour of common children or descendants, even charged to the freely disposable third of the estate and, generally, adjudications or allocations of specific goods pursuant to any title or in any capacity, or partitions, including those relating to goods pertaining to the marriage property community which has been dissolved and is pending liquidation.
These betterments, adjudications or allocations may be carried out by the spouse in one or several acts, whether simultaneous or successive. If the deceased were to not have conferred the power to do so in his last will and testament itself or were to not have set a term to perform the, the spouse shall have two years counting from the opening of the succession or, as the case may be, from the emancipation of the last of the children had in common.
Provisions made by the spouse relating to particular and determined goods, as well as granting ownership rights in favour of the child or descendant favoured with the betterment, shall also confer possession as a result of the latter’s acceptance, save as otherwise provided therein.
2. The surviving spouse shall administer the goods in respect which the powers mentioned in the preceding Paragraph are pending exercise.
3. The spouse, on exercising the powers entrusted to him, shall respect the part of the reserved share of the estate of any descendants had in common that must necessary be distributed equally between them and any betterments and other provisions made by the decedent in favour of the latter.
If the part of the reserved share of any descendant had in common that must necessary be distributed equally between them, or the share in the estate provided in his favour by the decedent were not respected, the aggrieved heir may request the rescission of the act of the spouse to the extent necessary to satisfy the injured interest.
The decedent’s provisions in favour of children or descendants had in common and reserved shares shall be deemed to have been respected if both are sufficiently satisfied, even if, in whole or part, this has been done with goods pertaining only to the spouse who exercises the powers.
4. The granting of the powers above to the spouse shall not alter the system governing the reserved shares or the decedent’s provisions, if the person favoured by one or the other is not a descendant had in common. In such event, the spouse who is not a straight line relative of the person favoured by the betterment shall have powers, as relates to the goods destined to the exercise of such powers, to act on behalf of descendants in common in any acts of performance or adjudication relating to such reserved shares or provisions.
If any descendant who is not a descendant of the surviving spouse has been unintentionally overridden in the deceased’s inheritance, the exercise of the powers entrusted to the spouse may not prejudice the share corresponding to the person who was passed over.
5. The powers bestowed on the spouse shall cease from the time such spouse were to marry again or begin de facto a relationship akin to marriage or were to have a child who is not a child had in common with the deceased, save as otherwise provided by the testator.
6. The provisions of the preceding Paragraphs shall also apply if persons with descendants in common are not married to each other.
If the betterment were not to have been set in respect of a specific object, it should be paid with the goods pertaining to the estate, observing, to the extent possible, the provisions contained in Articles 1061 and 1062 to ensure the equality of the heirs in the partition of the estate.
The child or descendant who has been granted a betterment may renounce the inheritance and accept the betterment.
Section Seven. Rights of the widowed spouse
The spouse who, upon the death of his consort, were not judicially or de facto separated if he partakes in the inheritance with children or descendants, shall be entitled to the usufruct of the third part of the estate destined for betterment.
If there has been a reconciliation between separated spouses, notified to the Court who adjudged the separation proceedings according to Article 84 of this Code, the surviving spouse shall preserve his rights.
If there are no descendants, but there are ascendants, the surviving spouse shall be entitled to usufruct over one-half of the estate.
In the absence of descendants or ascendants, the surviving spouse shall be entitled to the usufruct over two-thirds of the estate.
The heirs may pay the spouse his part in usufruct by allocating to him a life annuity, the products of certain goods or a sum of capital in cash, by mutual covenant and, in the absence thereof, under a Court order.
Until this is carried out, all goods in the estate shall be destined to pay the part of the usufruct corresponding to the spouse.
If the widowed spouse concurs with children only of the decedent, the former may request that his right of usufruct be satisfied, at the children’s discretion, by allocating a capital sum in cash or a batch of goods pertaining to the estate.
Section Eight. Payment of the hereditary portion in special cases Article 841
The testator, or the partitioner explicitly authorised by the former, may adjudicate all goods in the estate or part thereof to one or more of the children or descendants, ordering him or them to pay in cash the portion of the estate corresponding to the remaining forced heirs.
The appointed partitioner mentioned in Article 1057 of the Civil Code shall also have the authority to pay in cash in the same case as the preceding Paragraph.
Notwithstanding the provisions of the preceding Article, any of the children or descendants obliged to pay in cash the share of the estate pertaining to their siblings may request that such share be paid in goods pertaining to the estate, with the obligation to observe, in such case, the provisions of Articles 1058 to 1063 of this Code.
Save in the event of explicit confirmation thereof by all children or descendants, the partition mentioned in the two preceding Articles shall require the approval of the Court Clerk or the Notary Public.
The decision to pay in cash shall not be effective unless it is communicated to the recipients within one year from the opening of the succession. Payment shall be made within another year, save as otherwise covenanted. The recipient of the amount shall be entitled to the legal warranties provided in favour of the legatee of a specific amount.
After the lapse of such period without the payment having been made, the rights conferred by the testator or the partitioner to the children or descendants shall lapse, and the estate shall be distributed according to the general provisions relating to partition.
The option mentioned in the preceding Articles shall not impinge legacies of a specific object.
Such option shall also not affect the provisions on the partition made by the testator referring to specific objects.
For the purpose of setting the sum to be paid to the children or descendants, the value of the goods at the time of settling the corresponding portion shall be considered, taking into account any fruits or yields accrued until such time. As from that calculation, credits in cash shall accrue interest at the legally established rate.
Section Nine. On disinheritance
Disinheritance may only take place on one of the grounds explicitly outlined in the law.
Disinheritance may only be made in a last will, stating therein the legal ground on which it is based.
The burden of proof of the truth of the ground for disinheritance should correspond to the testator’s heirs if the disinherited heir were to deny it.
Disinheritance performed without stating any ground, or on a ground whose certainty, if contradicted, were not proven, or which is not included amongst those listed in the four following Articles, shall annul the appointment of heir to the extent that it prejudices the disinherited heir; the aforesaid notwithstanding, legacies, betterments and other testamentary provisions shall be valid to the extent that they do not prejudice the disinherited heir’s reserved share.
Grounds of incapacity to succeed as a result of unworthiness outlined in Article 756 Numbers 1, 2, 3, 5 and 6 shall be just grounds for disinheritance, in the terms specifically established in Articles 853, 854 and 855.
The following grounds shall also be just grounds to disinherit children and descendants, as well as those provided in Article 756 under Numbers 2, 3, 5 and 6:
1. Having refused, without legitimate reason, to support the parent or ascendant who disinherits him;
2. Having mistreated him physically or severely insulted him verbally. Article 854
The following grounds shall be just grounds to disinherit parents and ascendants, as well as those provided in Article 756 under Numbers 1, 2, 3, 5 and 6:
1. Having forfeited parental authority on the grounds stated in Article 170;
2. Having refused maintenance to his children or descendants without legitimate reason;
3. An attempt by one of the parents against the other’s life, if no reconciliation between them has taken place.
The following grounds shall also be just grounds to disinherit the spouse, as well as those provided in Article 756 Numbers 2, 3, 5 and 6:
1. Having seriously or repeatedly breached marital duties;
2. Causes which entail forfeiting parental authority, according to Article 170;
3. Having refused support to the testator or the children;
4. Having attempted to take the life of the testator, if no reconciliation between them has taken place.
A subsequent reconciliation between offender and offended shall deprive the latter of the right to disinherit, and shall render the disinheritance already effected null and void.
The children or descendants of the disinherited heir shall occupy his place, and shall retain the rights pertaining to forced heirs in respect of the reserved share.
Section Ten. On bequests & legacies
The testator may encumber with bequests and legacies, not only his heir, but also the legatees.
Legatees shall only be liable for the encumbrance up to the value of the legacy.
If the testator were to encumber one of the heirs to the legacy, only such heir should be obliged to perform it.
If the legacy were not to encumber any of them in particular, all of them should be obliged in the same proportion in which they are heirs.
The person obliged to deliver the legacy should be liable for eviction if the object were to be indeterminate and were to be mentioned only by type or species.
A legacy of an object pertaining to another shall be valid if the testator, in making the legacy, was aware of the fact. The heir shall be obliged to acquire it and deliver it to the legatee; and, if this were not possible, to give to the latter the fair value thereof.
The burden of proof that the testator knew that the object pertained to another corresponds to the legatee.
If the testator was unaware that the object bequeathed pertained to another, the legacy should be null and void.
The aforesaid notwithstanding, it shall be valid if he were to acquire it after making the last will.
A legacy made to a third party of objects pertaining to the heir or legatee shall valid, and the latter, in accepting the succession, shall deliver the object subject to the legacy or the fair value thereof, with the limitation provided in the following Article.
The provisions of the preceding Paragraph shall be construed without prejudice to the reserved share corresponding to forced heirs.
If the testator, heir or legatee were to only hold one part of or a right in the object bequeathed, the legacy shall be deemed limited to such part or right, unless the testator were to explicitly declare that he bequeaths the whole object.
The legacy of objects which are beyond the bounds of commerce shall be null and void.
The legacy of an object which, at the time of making the last will, were to already pertain to the legatee, shall be without force and effect, even if any other person were to hold a right over it.
If the testator explicitly provides that the object is to be released of this right or encumbrance, the legacy shall be valid in this respect.
If the testator were to bequeath an object which was pledged or mortgaged as security for any payable debts, the heir should be in charge of paying such debt.
If, as a result of the heir’s failure to pay, the legatee were to pay the debt, the latter shall become subrogated in the position and in rights of the creditor to claim the debt from the heir.
Any other perpetual or temporary lien to which the object bequeathed were to be encumbered with shall pass to the legatee, but in both cases, the income and interest or yield accrued until the testator’s death shall constitute an encumbrance of the estate.
If the object bequeathed were to be encumbered by a usufruct, use or habitation, the legatee shall respect these rights until they are legally extinguished.
The legacy shall be without force and effect:
1. If the testator were to transform the object bequeathed so that it does not keep the form or the name it had before.
2. If the testator were to dispose, according to any title or for any reason, of the object, bequeathed or a part of it, understanding in this last case that the legacy shall only be rendered ineffective in respect of the part which has been disposed of. If, after such disposal, the object were to return to the testator’s ownership, even if this were to be as a result of the nullity of the relevant contract, the legacy shall subsequently still be ineffective, unless the re-acquisition were to result from a sell-back covenant.
3. If the object bequeathed were to wholly perish during the life of the testator, or after his death without fault by the heir. Those mentioned above notwithstanding, the person obliged to pay the legacy shall be liable for eviction if the object bequeathed were not to have been established as to the species thereof, under the provisions of Article 860.
A legacy of credit held against a third party, or the forgiveness or release of the legatee’s debt shall only be effective in the part of the credit or debt which subsists at the time of the testator’s death.
In the first case, the heir shall fulfil his obligations by assigning to the legatee all actions to which it is entitled against the debtor.
In the second, he shall meet his obligations by giving the legatee a receipt of payment, if so requested.
In both cases, the legacy shall include any interest due on the credit or debt at the time of the testator’s death.
The legacy mentioned in the preceding Article shall become void if the testator, after having made it, were to judicially claim his debt from the debtor, even the debtor had not paid at the time of the former’s death.
A legacy of a pledged object in favour of the debtor shall only be deemed to comprise a renunciation to the pledge.
A generic legacy of release or forgiveness of debts includes debts outstanding at the time of making the last will, not any subsequent debts.
A legacy made to a creditor shall not be allocated to payment of his credit, unless explicitly so provided by the testator.
In this last case, the creditor shall be entitled to receive the excess of the credit or the legacy.
In alternative legacies, the provisions hereof concerning obligations of the same kind shall be observed, except for any amendments resulting from the testator’s explicit intention.
A legacy of a generic movable object shall be valid even if the estate includes no objects of such type.
A legacy of an indeterminate immovable object shall only be valid if an object of this type exists in the estate.
The choice shall correspond to the heir, who shall fulfil his obligation by giving an object which is not of a low or high quality.
If the testator were to explicitly leave the choice to the heir or the legatee, the former might give, or the latter choose what they think best.
If the heir or legatee was unable to make a choice, if it has been given to him, his right shall pass to the heirs; the aforesaid notwithstanding, once made, such choice shall be irrevocable.
If the object bequeathed pertained to the legatee on the day of the last will, the legacy should be invalid, even if it has been disposed of subsequently.
If the legatee were to have acquired it as a gift after such day, he might not request any amount as a result; those mentioned above notwithstanding, if the acquisition were to have been made for valuable consideration, he may require the heir to compensate him for the amount given to acquire it.
A legacy consisting of paying for someone’s education shall last until the legatee comes of age.
A legacy consisting of support shall subsist during the life of the legatee, unless otherwise provided by the testator.
If the testator were not to have provided a specific amount for such legacies, it should be set according to the status and condition of the legatee and the amount of the estate.
If the testator during his life used to give the legatee a certain amount of money or other objects as support, the same amount should be deemed to have been bequeathed, unless this notably disproportionate in respect of the amount of the estate.
In the event of a legacy of a regular allowance or a specific annual, monthly or weekly amount, the legatee may demand the amount corresponding to the first period from the time of the testator’s death, and for the following periods at the start of each of them, without any obligation to return such amounts even if the legatee were to die before the end of the relevant period.
The legatee shall be entitled to outright and simple legacies as of the testator’s death and shall convey this right to his heirs.
If a legacy consists of a specific and determined object owned by the testator, the legatee shall acquire ownership thereof as of the testator’s death, and shall be entitled to pending fruits or income, but not to income accrued and unpaid before such death.
The object bequeathed shall from such time be at the legatee’s risk and benefit, and the legatee shall, therefore, bear its loss or impairment, and shall benefit from any accretion or improvement thereof.
The object bequeathed shall be delivered with all its fittings and in its condition at the time of the testator’s death.
If the legacy were to not consist of a specific and determined object, but of a generic object or amount, the fruits and interest thereof from the testator’s death should correspond to the legatee if the testator were to have so provided explicitly.
The legatee may not take possession of the object bequeathed by his own authority but shall request delivery and possession thereof to the heir or the executor, if the latter is authorised to do so.
The heir shall give the exact object bequeathed, if he were able to do so, and shall not fulfil his obligation by paying its estimated value.
Legacies consisting of money shall be paid in money, even if there is none in the estate.
Expenses necessary to deliver the object bequeathed shall be borne by the estate, but without prejudice to the reserved share.
If the goods of the estate were not sufficient to cover all legacies, payment thereof should be made in the following order:
1. Remunerative legacies;
2. Legacies of a certain and specific object which forms part of the estate;
3. Legacies declared to be preferential by the testator;
4. Legacies of support;
5. Legacies of education;
6. The rest shall be paid pro rata.
If the legatee cannot or does not want to accept the legacy, or if the latter were to be without force and effect for any reason, it shall be returned to the estate, save in the event of substitution or right of accretion.
A legatee could not accept one part of the legacy and refuse another if the latter were to be onerous.
If he were to die before accepting the legacy, leaving several heirs, some might accept, and others refuse their corresponding share in the legacy.
The legatee of two legacies, one of which is onerous, may not renounce the latter and accept the former. If both of them are onerous or outright, he shall be free to accept them all or refuse whichever one he chooses.
The heir who is at the same time a legatee may renounce the inheritance and accept the legacy, or renounce the latter and accept the former.
If the whole estate is distributed in legacies, any debts and encumbrances thereof shall be distributed pro rata between the legatees in proportion to their shares, unless otherwise provided by the testator.
Section Eleven. On executors or administrators
The testator may appoint one or more executors.
A person incapable of contracting obligations may not be an executor.
A minor may not be an executor, even with his parent’s or guardian’s leave.
The executor may be a general or a specific executor.
In any event, executors may be appointed jointly, successively or jointly and severally.
In the case of executors appointed jointly, only actions carried out by all of them in agreement, or those carried out by one of them with the legal leave of the rest or, in the event of disagreement, the actions resolved by the majority of them shall be valid.
In cases of serious urgency, one of the joint executors may perform, under his personal responsibility, any actions which may be necessary, giving immediate account thereof to the rest.
If the testator does not clearly provide that the executors are to act jointly and severally or set the order in which they are to fulfil their commission, they shall be deemed to have been appointed jointly and shall perform their duties as provided in the two preceding Articles.
The post of the executor is voluntary and shall be deemed accepted by the executor if he does not excuse himself within six days following that on which he becomes aware of his appointment or if he were to already be aware of it, within six days of his becoming aware of the testator’s death.
The executor who accepts this position takes on the obligation to perform the duties thereof; but may resign from it by alleging a just cause, accepted by the Court Clerk or Notary Public.
The executor who does not take the position or resigns from it without just cause shall forfeit anything which the testator has bequeathed him, always excepting his right to the reserved share.
Executors shall have all powers explicitly conferred upon them by the testator which are not contrary to the law.
In the absence of specific decision thereon by the testator, the executors shall have the following powers:
1. To decide and pay for any religious services and for the testator’s funeral as provided by the latter in his last will and, in the absence of any provision, under local custom;
2. To pay legacies consisting of cash, with the knowledge and approval of the heir;
3. To supervise the performance of all other mandates contained in the last will and testament
, and to uphold its validity, if this is just, in and out of Court;
4. To take the necessary precautions for the preservation and custody of the goods, with the intervention of the heirs who are present.
If the estate were to not include sufficient money to pay the funerals and legacies, and the heirs were to not contribute from their own goods, the executors shall promote the sale of any movable goods; and, if such goods were not enough, immovable goods, with intervention of the heirs.
If any minor, absentee, corporation or public establishment were to have an interest in the estate, the sale of the goods shall be carried out with the procedures provided by the law for such cases.
The executor who has not been set a specific period by the testator, shall fulfil his commission within one year counting from his acceptance, or from the end of any litigation initiated concerning the validity or nullity of the last will and testament or any provision thereof.
If the testator were to wish to extend the legal deadline, he shall explicitly determine the duration of the extension. If he fails to do so, such deadline shall be deemed extended for one year. If, after this extension, the testator’s intentions were to still not have been complied, the Court Clerk or the Notary Public may grant another extension for the period deemed necessary, in view of the circumstances of the case.
The heirs and legatees may, by common consent, extend the term of the executor for the time they deem to be necessary; but, if the resolution has only been adopted by the majority, the extension may not exceed one year.
The executors shall account for the fulfilment of their commission to the heirs.
If they have been appointed not to deliver the goods to specific heirs, but to invest or distribute them as provided by the testator in the cases permitted under the law, they shall be accountable to the Judge.
Any provision by the testator contrary to this Article shall be null and void. Article 908
The post of executor is not remunerated. The aforesaid notwithstanding, the testator may provide the remuneration for the executors deemed convenient; without prejudice to their right to charge any amount for any partition tasks or other optional tasks.
If the testator were to jointly bequeath or provide any remuneration to the executors, the part corresponding to those who do not accept the position shall accrue in favour of those who do exercise it.
An executor may not delegate his position unless he has the testator’s explicit permission.
The exercise of the post of executor shall conclude by the death, impossibility, resignation or removal of the executor, and by expiration of the lapse of time provided by the testator, by the law and, as the case may be, by the interested parties. The removal shall require approval by the Judge.
In the cases provided in the preceding Article, and in the event that the executor has not accepted the position, the heirs shall be in charge of executing the testator’s intentions.