In Spain, there are cases in which the testator cannot make a will with total freedom, as he/she has to abide by the rights that correspond to some heirs by law. The question is, what happens if a will does not respect the legitimate rights? We explain it below.
If a will does not respect the reserved portion, what can be done?
The so-called forced heirs or legitimated heirs have the right to have the testator respect that part of the inheritance that corresponds to them by law. Therefore, if a will does not respect the legitimate share that belongs to these heirs, it can be challenged.
In other words, an action could be brought to have the beneficiary heir’s share of the inheritance reduced to the extent necessary for the forced heirs to receive their share of the inheritance.
How to contest a will that does not respect the legitimate heirs’ rights?
In order to contest a will that does not respect the rights of the legitimate heirs, it is necessary to sue before the civil jurisdiction. The lawsuit will be filed in the Court of First Instance of the place where the testator died.
What is the time limit for contesting a will on the grounds that it does not respect the reserved portion?
The time limit for the plaintiff to contest a will that does not respect the reserved portion is 15 years from the date of death or from the date on which the authorised copy of the will to be contested is received.
Who can contest the will in these cases?
Heirs whose rights have not been respected in the will can contest the will. In other words, the legitimated or forced heirs.
Can the testator forbid the will to be contested?
The testator cannot forbid the will to be contested. However, he can leave to the legitimated heirs a larger share of the inheritance than they are legally entitled to, and stipulate that they receive only the reserved portion if they contest the will.
This is known as a clause or cautela socini, and is very often used to extend the usufruct of the widowed spouse. In these cases, the testator names his children as heirs to his entire estate, but provides for the usufruct of the estate in favour of his spouse if he survives him, and for as long as he does so (for life).
But the testator also stipulates that if any of the children contest the will, he/she will receive only the part of the legitimate share that corresponds to him/her. The part that he/she does not receive will be credited to those heirs who respect the usufruct of the widowed spouse.
If none of the children respect this usufruct, the testator provides that the widowed spouse inherits, in addition to the usufruct of the improvement third (which corresponds to him/her by law), the ownership of the free disposal third.