In this article, the Department of Family and Family Business Law of Belzuz Abogados, SL – Portugal describes succession planning, namely via a Will, and talks about its notion, types and formalities.
Thinking about death might not be pleasant. However, by making a will, we can ensure that the part of our property that we can dispose freely will go to the person(s) we want.
It is also a way to distribute our property by those who are not legitimate heirs, because these heirs – spouse and descendants or ascendants – are those who are always entitled to a part of the inheritance by law.
But what is the legal definition of will?
The law defines a will as a “unilateral, revocable act by means of which a person makes the disposition of their property or part of their property for after their death.”
It is a unilateral act, because two or more persons cannot be testators in the same will. It is also a singular act, because a will cannot be made by a representative or depend on someone else’s will, although there are exceptions to this rule.
The will is also a revocable act. The testator cannot waive their revocation capacity. If they do so, such clause will be deemed by law as unwritten, confirming the fact that the will is a “disposition of last will”.
Our legal framework encompasses two common forms of will:
• Public Will: made with the notary public, who writes the text in their book. The document is available for consultation and anybody can learn the last will of the testator.
• Holographic Will: When the will is an handwritten document signed by the testator; it can also be written in the hand of another person, at the request of the testator, and signed by the latter. A Notary Public must approve this type of will beforehand. It is also worth to highlight that the testator can also file this Holographic Will at a Notary Public’s Office. This form of will is, however, limited because it cannot be used by someone who is unable to or cannot read.
There must be two witnesses. The Notary Public can provide the witnesses in case of urgency and difficulty in finding them, which must be mentioned in the will.
This way, the will is a formal act. The Portuguese law does not recognise as valid a verbal or written testament, dated, and signed by the testator, without any further formality.
It is worth to mention that, in addition to property, the law allows that other provisions can be included in a will, such as confession, acknowledgement of paternity, appointment of a tutor, among others.
Who can make a will? Everyone who is not declared legally unable to make a will.
This way, minors who are not emancipated and persons who are deemed mentally unfit are not able to make a will and any will made by those individuals is rendered null by the law.
Temporary loss of testamentary capacity, frequently used in Courts to render a will invalid, cannot be mistaken for the lack of testamentary capacity. In the first case, the individual making the will can be “unable to understand the meaning of their statement or not exercising their will freely for any reason” but still has testamentary capacity, whereas in the second case, the individual lacks testamentary capacity.
Considering the moment we are now living caused by the COVID-19, it is worth to mention that the Portuguese legislator also allows special Will forms, such as the Will made in case of public calamity: if a person is not able to make a will via the usual forms because they are in a place where a pandemic or any other public calamity was declared, they can go before a notary public, judge or priest and make their will, provided they observe the formalities required by law, among which are the presence of two witnesses.
The Department of Family and Family Business Law of Belzuz Abogados SL – Portugal has a team that is qualified to advise on the elaboration of a Will, so that the last will of the testator is always respected and all legal requirements are observed to avoid procedures that may compromise the validity of such Will.
Belzuz Abogados SLP
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