Carlos Baos – Contesting A Will

Contesting a will due to the lack of capacity of the testator. Access to the medical records of the deceased. Heirs. Legal Advice by Spanish Lawyers in Costa Blanca.

In this week’s article we want to analyse a somewhat complex but interesting issue. Challenging a will due to lack of capacity of the testator. And in particular, the importance that accessing the deceased’s medical records, has in this type of situation.

When someone dies, and it turns out that he/she had granted or changed the will shortly before death (favouring certain people in his/her close circle) uncomfortable and tense situations often arise. Especially in cases where the deceased was of an advanced age and was suffering from certain illnesses, which are becoming increasingly common, such as senile dementia, etc.

Notarial capacity test: What exactly does it consist of?

It is important to start from the premise that all wills executed before a notary are considered to be perfectly valid and effective from the outset. Why? Notaries, in the exercise of the public functions attributed to them, carry out what is known as the ‘notary’s judgement’. In other words, they judge the faculties of the person before them to determine if he/she is perfectly capable, etc.

No. The notary is not a medical expert, so this presumption can be revoked at any time. However, to successfully do so, it will be necessary to provide strong and compelling evidence. And this is precisely where access to the medical records of the deceased comes into play. If there are conclusive medical reports that show that the deceased suffered from an illness, that prevented him/her from reasoning properly at the time of granting the will, it could be successfully challenged.

This is regulated in both national and regional laws. And both establish that close relatives have the right of access to the medical history. Does this mean that if the heir is not a relative, but, for instance, a friend or a person who does not have a blood relationship with the deceased… he/she cannot have access to the medical records of the deceased? No. We understand that the heirs (even if they are not relatives) are also entitled to access the medical reports. In fact, the Spanish Data Protection Act states the same thing, and specifically mentions the ‘heirs’ (and not only relatives) among those who can request access to the medical records of the deceased.

At White Baos Lawyers we are experts in international inheritances, contesting wills, etc. If you have any questions or doubts about this topic, or any other, please do not hesitate to contact us.

You may be interested in the following services and articles:

Contest and Challenge a Spanish Will. New court success. Spanish forced heirs’ rights. Application of Spanish law to an expat heir. Legal advice

Contentious inheritances in Spain. Deadline to claim for an inheritance. Deadline to contest a Will.

Challenging a Spanish will. The application of Spanish law when the foreign citizen has his habitual residence in Spain. His domicile, or all his real estate in Spain, etc. This could be your case!

Carlos Baos (Lawyer)

White & Baos.

Tel: +34 966 426 185

E-mail: info@white-baos.com

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