What is the purpose of contesting a will?
If you do not agree with the contents of the will, either you or any of the other co-heirs, you can initiate proceedings to contest the will.
In general, this situation occurs when events such as disinheritance of a family member, unequal distribution of the inheritance or when the testator has acted under pressure from third parties.
However, below we will look in detail at the 4 most common grounds for successfully contesting a will in Spain.
Grounds for contesting a will
Challenging a will due to the absence of a compulsory heir in the will
When there is no mention of a compulsory heir in a will we talk about preterition.
The lack of naming can be intentional or unintentional. In the first case, it occurs when the testator knows of the existence of the heir but does not name him/her in the will. The second occurs when the testator is unaware of the existence of the heir, for example: not knowing that the testator has a child.
Whatever the cause of the heir's absence, the heir may contest the will.
Challenging a will on the grounds of incapacity of the testator
The Spanish Civil Code includes two situations within this cause:
- When the testator at the time of making the will is unable to conform or express his will even with the help of means or aids to do so.
- When the testator is under 14 years of age.
Challenging a will on the grounds of non-compliance with the law on the distribution of assets
We must bear in mind that inheritance is divided into three parts:
- One-third of the reserved portion of inheritance (Article 806 of the Civil Code): divided equally among the legitimated heirs.
- Hereditary improvement thirdThe testator may voluntarily dispose of one of the thirds to improve the inheritance of one or more of the children or descendants.
- Unrestricted thirdThe testator distributes it according to his will to the person of his choice without this person being a descendant or relative (forced heir).
When, for whatever reason, this distribution is not complied with, the heirs have the right to contest the will on the grounds that the testator may not deprive the forced heirs of their reserved portion.
Challenging a will on the grounds of formal errors in the drafting of the will
As we discussed in our article on wills in Spain, There are different types of wills, among which we will highlight the most common ones: open, closed or holographic.
Each of them has its own requirements, the non-fulfilment of which may give rise to grounds for challenge. These include:
- In holographic wills, the presence of crossed-out words without a corresponding proviso signed by the testator.lack of competence of the notary.
- Lack of details of the notary, place and date of the authorisation of the will.
- Absence of the testator's signature.
Time limit for contesting a will
In general terms, the time limit for contesting a will in Spain is 5 years, However, it is necessary to consider each specific case, as the Supreme Court established, in its Judgment of 25 September 2019, that the time limit for contesting a will on the grounds of disinheritance is 4 years.
This period of time is counted from the death of the testator or from the time when the heir became aware of the contents of the will.
Hiring a lawyer to contest a will: how to go about it
The procedure is often quite complex because in addition to the legal formalities, there are the emotional implications for the heirs.
As we have seen, in order for the challenge to be carried out successfully, it is necessary to meet one of the reasons contemplated by the Law, in addition to an in-depth analysis of the will and the testamentary capacity of the person involved.
In situations such as these, having a lawyer specialising in inheritance and succession will facilitate the process and help you to achieve the best possible outcome in your interests.
At Ódice Abogados we are at your disposal to consult your situation and provide you with the service you need to deal with this and other legal processes related to inheritance and inheritance. Contact with us here.
You may be interested in: