Contesting a will in Spain: grounds, time limits and legal proceedings

Challenging a will in Spain is a complex legal procedure that requires proving the invalidity or nullity of the document on one of the grounds provided by law, such as infringement of forced heirship rights, coercion, or the testator’s lack of mental capacity.

When can a will be challenged?

A will is the document that governs the distribution of a deceased person’s assets. However, there are situations in which it may not faithfully reflect the testator’s wishes or strictly comply with the provisions laid down by law. In such cases, it is possible to proceed with challenging the will.

That said, we would like to be a little more explicit and set out the circumstances more clearly:

Lack of capacity of the testator

The deceased, who is the person making the will, must be in full possession of their mental faculties at the time of drafting it. If the heirs can demonstrate that they were not fully aware of their actions, for example due to a degenerative illness (Alzheimer’s, senile dementia, etc.), the will may be challenged. The same applies if it was drawn up when the testator was under 14 years of age.

Vitiated consent

This refers to situations in which the testator is coerced, pressured or deceived into drafting the will in a particular way. For instance, a relative who threatens to withdraw care unless they are named as heir to part of the estate.

Breach of forced heirship rules

Certain heirs, such as the spouse, children and ascendants, are protected by law, which guarantees them a fixed portion of the estate, known as the forced share. If the testator does not respect this distribution, those affected are entitled to challenge the will.

Formal defects

All wills, whether open, closed or holographic, must comply with a series of legal formalities in order to be valid. For example, a holographic will that is not dated and signed, or an open will executed without the presence of witnesses, may be subject to challenge.

So, can a will executed before a notary be challenged?

Obviously, the answer is yes. However, the chances of a successful challenge are much lower, especially in the case of an open will.

The reason is simple. Notaries are public officials who not only certify the testator’s last wishes and ensure they are properly recorded, but also supervise compliance with all legal formalities.

In the case of open wills, they are even aware of the content, although it is protected by professional confidentiality. This is why, unless it can be proven that the consent was vitiated—something that usually falls outside the notary’s knowledge—challenging this type of will is very complex.

How to challenge a will

The first step is always to seek a solicitor specialising in inheritance law who can assess your case and determine whether there is a realistic prospect of a successful challenge.

You must also ensure that you are within the time limits for challenging a relative’s will. The law provides as follows:

• Lack of capacity of the testator: 4 years from the date of death or from when the cause of possible nullity became known.
• Vitiated consent: 4 years from when the coercion, fraud or deception became known.
• Formal defects: 15 years from the date of the testator’s death.
• Breach of forced heirship rules: 5 years from acceptance of the inheritance.

Once it has been confirmed that you are within the time limit to challenge the will and you have instructed a specialist inheritance solicitor, the next step is to gather evidence. This may include witness statements, medical reports demonstrating lack of capacity at the time the document was drafted, or any evidence of coercion or deception.

It is then usually advisable to attempt a settlement meeting and seek an out-of-court solution. As we will see below, the consequences of challenging a will can be complicated for all parties. If no agreement is reached, the only option will be to file a claim before the court.

Based on the evidence provided, a judge will determine whether:

• The will is null and void: in which case it loses its validity and the rules of intestacy apply, i.e. those applicable where a person dies without leaving a will.
• The distribution of assets was incorrect: it will be amended so that all forced heirs receive the share to which they are entitled.
• The challenge is dismissed and the will remains in force.

How much does it cost to challenge a will?

Challenging a will can be very costly, both in terms of time and money. In fact, if no agreement is reached, proceedings can easily take more than a year, not including possible appeals.

In addition, there are solicitor’s fees and legal costs, which must be paid if the claimant fails to successfully challenge the will. All of this means that it is always advisable to seek advice from a leading inheritance law firm and to think carefully before bringing a claim.