Luis Prados Ramos



I have to say that the will, despite having authorized many at the end of my life, is a document that with the passage of time, every time I face it, and that is almost daily, causes me more respect. About the notable importance of a correct writing and transcendence that this has in its execution, I have already discussed in other entries of this blog, as you can consult by clicking here.


The will is a document that is not valued socially, and I think something has to do with it, its ridiculous price in relation to its importance, which with small variations, derived from the way of working of each notary, can be around 50 euros.

From a purely business point of view, a notary is not interested in making wills, due to the waste of allocating resources, which could be better invested in other attentions that provide more performance.

And that ridiculous price also means that people do not come to value it, because cheap seems of little value, and they may come to consider, as I have had to hear on some occasion, that a will is simply filling out a form provided by any consumer service magazine.

However, the will leads us to introduce ourselves inside people, and when they have a complicated situation, the time they share with the notary reveals many concerns, to which they intend to respond through their will, and it is in this work of sincere advice, where the notary reaches its true dimension, which goes far beyond mere documentary work.


If there is a particularly delicate type of will, it is that of the people who carry in their “life backpack”, one or more breakups, and have children. Asking who can take care of their minor children in the event of their absence causes enormous anguish, especially if they know that this is going to happen due to illness, and the other parent, despite not having been deprived of parental authority, does not take care of the children at all, and may not even have a minimal bond of affection with them.

The demand that is made to us is whether, through the will, it can be established that the child lives, instead of with the biological parent, with a relative who is the one who really cares for him, cares for him and exercises the attentions of a father or mother on him.

The answer to these concerns, with all our pain, cannot be other than that these issues have to be asserted in court. That in the will some type of "desideratum" can be established, which may be taken into account by the judge, and on some occasions, as a consequence of the fact that the testator was undergoing a process, which could make him lose physical or intellectual viability, for the care of the child we have made some type of declaration in order to pre-constitute some type of evidence.


In any case, I have received, and I cannot deny that with great pleasure, the judgment of the Supreme Court dated September 14, 2018, which provides a solution, at least in the specific case raised therein, to the concerns that we have been referring to.


The facts are as follows:

Person X dies, leaving a minor daughter. The aunt files a lawsuit regarding the adoption of measures against the other parent, requesting that custody of the minor be attributed to her, since she is the one who has been exercising it continuously, in fact, since the death of the mother, and simultaneously alimony paid by the father, as well as a visitation regime.


The legal question that arises in the case is whether any relative of the minor can be the holder of the guardianship and custody of a minor, upon the death of one of the parents, while the parental authority of the other parent subsists. Article 165.4 CC seems clear on this matter as it states that  in the absence or absence, incapacity or impossibility of one of the parents, parental authority will be exercised exclusively by the other.

By way of exception, article 103 of the Civil Code allows, provisionally and during the separation or divorce proceedings, that children may exceptionally be entrusted to grandparents, relatives or other persons who consent to it and, if there are none, to a suitable institution, conferring on them the guardianship functions that they will exercise under the authority of the judge.

But these measures are not of those that can be definitively established in Article 92 CC, so in the absence of one parent, custody corresponds to the other.


The Supreme Court tells us that family relations, due to their special nature, require treatment that is susceptible in some cases to a joint and harmonious interpretation of the rules that govern the rights and obligations of those who make it up.

And in order to grant custody to the aunt, and not to strictly apply the aforementioned articles of the Civil Code, it tells us that it is not a question of ignoring the law but of applying it in accordance with its purpose and fundamental principles that integrate it with special preeminence of the best interests of the minor, pointing out that the minor, in short, has had, and continues to have, a stable and secure environment with her aunt, which has made it possible to create affective ties that are very different from those that exist with her father, which justify the attribution of custody to her. guardianship and custody, without prejudice to the possible reinstatement in the custody of the father, if the necessary conditions are met and the interest of the minor justifies it.


In order for the courts to rule in the sense of attributing custody to a third party instead of some of the parents, there must be circumstances that justify it, for this reason I finish the entry with a quote from some sentences and cases discussed in them.

Judgment 679/2013, of November 20, attributes the guardianship and custody of a girl to the person who challenged paternity "and this precisely because of the public interest that informs these procedures in relation to minor children, in accordance with the aforementioned regulations, even if they exceed parent-child relationships.

Judgment 47/2015, of February 13, admits the possibility of attributing the guardianship and custody of a minor to persons other than their parents (the paternal aunt), due to the special circumstances that have surrounded the life and growth of the child, whose mother murdered his father.

Judgment 582/2014, of October 27, establishes that "when a de facto guardian provides a minor with the necessary assistance, supplying the parents' breach of the duties of protection established by the laws regarding the custody of the former, it is neither excluded nor imposed to declare the situation of helplessness, and the specific circumstances of the de facto guardianship, interpreted under the protection of the best interest of the minor, must be the determining factors when deciding the legal situation regarding their effective protection. ».


Family law and inheritance law, which is regulated by the Civil Code, suffers from a notable lack of adaptation to reality, which forces the Courts to rule, separating from the tenor of the law, leaving legal security very damaged. The most flagrant case is the legitimate ones, but not only the only one. Whether it is convenient to give the Courts more discretionary powers to be said, but the interpretation "contra legem" is not admissible

In Leganés on October 7, two thousand and eighteen.

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