Can a will made before a notary be contested? Requirements and deadlines

When we talk about contesting a will, we are referring to requesting its annulment. Generally, this is because it has not been carried out in accordance with the regulated procedures or because it is considered unfair or illegal. It is a controversial decision and, except in exceptional cases, difficult to carry out.

This is why we have written an article with all the information you need to know when contesting a will. In it, we will try to answer all the questions that interested parties usually ask.

Can a will made before a notary be contested?

The document containing the will is usually drafted by a solicitor specialising in inheritance based on the testator's wishes. It is then signed and deposited in the Register of Last Wills and Testaments by a notary, so it is usually difficult for it not to comply with the provisions of the law.

However, current legislation establishes the possibility of contesting an inheritance and a will. That said, very specific circumstances beyond the testator's control must exist.

When can a will be contested?

Specifically, the Civil Code establishes six cases in which a will may be contested. Let's take a look at them:

• The will has excluded a compulsory heir or legitimate heir. This is known as preterition. It should be remembered that any inheritance is divided into three parts: legitimate portion, improvement and free disposal. The testator cannot deprive their compulsory heirs (their children, for example) of the legitimate third that corresponds to them, unless it is due to a cause provided for by the Civil Code itself. In most cases, this occurs when a child of the testator is born after their death.
• Incapacity. It is possible that, at the time of making the will, the testator is not in full possession of their mental faculties. If the person who wishes to contest it can prove this, it is very likely that it will be invalidated.
• Failure to respect the legitimate shares. This case is directly related to the first. It is possible that the testator has included all his compulsory heirs in the will, but has not distributed the estate equally.
• Disinheritance not in accordance with the law. The Civil Code also provides for cases in which a testator may disinherit a compulsory heir. However, there are times when this is done unilaterally and independently, which is grounds for contestation.
• Coercion. If the testator has made a will after being intimidated, deceived or threatened, the document will be invalid. In addition, the person who does so will be liable to the penalties set out in Article 243 of the Criminal Code, which regulates the crime of extortion.

Furthermore, the will may have formal defects in its wording and therefore fail to comply with the formal requirements established by law. This is particularly common in the case of holographic wills, which are those drawn up by the testator without the prior intervention of a notary.

What is the deadline for contesting a will?

Heirs have a fairly long period of time to consider whether or not it is in their interest to contest the will. Specifically, the law establishes a period of 15 years, which begins from the moment of the testator's death or, failing that, from the moment the heir receives the certified copy of the will being contested.

How to contest a will?

To begin the process of contesting a will, it is mandatory to file a lawsuit in the Court of First Instance corresponding to the place where the testator died. The involvement of a solicitor and a barrister is mandatory.

Undoubtedly, contesting a will is particularly complex when the document has been drawn up before a notary, as this public official is responsible for ensuring that there are no formal defects and for assessing the testator's capacity. In other words, they must verify the testator's capacity to act and advise them appropriately to prevent any future contestation.

It should also be noted that this is a process that often takes years and is therefore quite costly. A solicitor specialising in inheritance can advise the interested party on whether or not it is really in their interest to take legal action. Added to this is the emotional cost that this usually entails, as contesting a will often leads to confrontation between immediate family members.

In short, contesting a will is an option available to any heir who feels that their rights have been violated. However, it is a long and costly legal process that does not always result in the revocation of the document and a more equitable distribution of assets. This is especially true when the will has been drawn up before a notary and this official has been responsible for its processing.

That's all. If you still have any questions or would like to know more, please do not hesitate to contact us.