THE CAPACITY TO MAKE A WILL

If I make an entry under this title, it is because one of the search criteria, through which at least one person has reached my website, referred to the action protocol of a notary when the person who is going to grant testament has "alzheimer's". In order to deal with this question and focus the problem, we must start from a higher category such as the ability to make a will, and through it we will arrive at a series of conclusions that I believe may become valid, as explanatory of the correct performance of a notary, when authorizing the will of any person. As usual in this blog, we are going to make the legal references to Catalan law, although it is also necessary to say that there will be no great differences in the conclusions that we can draw, to apply them to any other legal system existing in Spain. Likewise, when we talk about wills, we refer exclusively to notarial ones.

In accordance with article 421.3 of the Civil Code of Catalonia, all persons who, according to the law, are not incapable of doing so, can make a will. This article comes to establish what is called a presumption of capacity, so that any person may make a will, as long as they are not incapable of doing so. The people who cannot make a will, according to 421.4 of the Civil Code of Catalonia are minors under fourteen years of age and those who do not have a natural capacity at the time of granting.

The aspect of the age to make a will is clearly appreciable, so that if a will is granted by a person under fourteen years of age, that will is null and void and has no effect. It is more difficult to determine what the natural capacity to grant a will means, since it is an undetermined legal concept. But in an explanatory way we can define this natural capacity as the ability to be aware of the content of the will and actually want that content. For this reason, the capacity required to make a will can be very different depending on its complexity, since it can be seen that designating the spouse as heir is very different than designating a third person who does not belong to the family as heir. .

The assessment of the capacity to make a will corresponds to the notary authorizing it. The assessment of the capacity must be carried out by the means provided for in the notarial legislation, which only establishes that the Notary Public must attest that the grantors of any document have the necessary capacity and legitimacy, but does not establish the manner. Therefore, the appraisal of the testator's capacity is at the discretion of the Notary, being an inexcusable function on the other hand, being able to use, if he deems it appropriate, the assistance of two doctors who certify the capacity, but who in no case exempt him from make the pertinent judgment of capacity.

With what has been said so far, it can be thought that few conclusions can be drawn about the Notary's mode of action. Speaking with legal professionals, they consider that it is a very difficult matter for the Notary to appreciate the capacity of the testator, since he is not a medical professional. It is not like that, I think. Simply, it is about being able to appreciate by the Notary, that a person wants the content of the will, which is very simple, when it is explained verbally (usually) and in the first person. There is no doubt in me, the fact of the capacity of a person, who comes to the office to make a will and says that he wants to distribute his assets in a certain way. In the case of wills of people of advanced age and with an obvious loss of faculties, it is somewhat more difficult, and the rule of action will be highly variable, depending on the knowledge that the notary has of the testator, his family and the content of the will, taking precedence prudence in their actions.

What will always be difficult for the Notary to appreciate are the emotional circumstances of a person when they make a will, which is also a circumstance beyond their capacity. There may be cases in which a person makes a will, because they come to threaten them that if they do not do so, they will throw them out of the house. How to prevent these issues depends a lot on the mode of action of each notary. The best way to prevent these situations is that when a person comes to make a will, have the peace of mind knowing that everything he says is absolutely secret and that there are means to ensure that his true will will not be known by anyone until the moment of his death.