Today in our blog we comment on a important novelty introduced in the Civil Code of Catalonia, in reference to the procedures of inheritance for people with disabilities sensory. This is the Law 6/2019, of October 23, of modification of the fourth book of the Civil Code of Catalonia, whose raison d’être is that persons with sensory disabilities can exercise their rights when executing a will before a notary on an equal footing with othersThe person may also intervene as a witness in the act of granting of a will by another person.
Easier inheritance procedures for people with sensory disabilities
The regulation defines persons with sensory disabilities as those who, whether temporary or permanent, suffer either a dysfunction or a visual, auditory or verbal disability or handicap that limits their faculties of expressive and receptive communication. To meet their specific needs “it is appropriate to adopt measures to achieve equality of treatment and opportunities in the exercise of their rights and duties as citizens”.
Thus, the law aims to “eliminate the restrictions that the Civil Code of Catalonia establishes for people with sensory disabilities at the time of performing acts of inheritance nature”.
The aim is that, in the field of Civil Law, a person with a sensory disability, whether temporary or permanent, is treated the same as any other person who does not have a judicially modified capacity, since “the fact of suffering a particular sensory disability should not be, by itself, a limitation at the time of performing certain acts with legal effectiveness, as is, within the scope of this law, the fact of granting a will before a notary or intervening as a witness in the will granted by another person”.
The rule on inheritance for persons with sensory disabilities considers that, with the technological advances existing today, it is not justified to maintain these discriminatory limitations, since sensory deficiencies can be made up for with non-verbal communication alternatives or with the use of technological means that provide reliability and legal certainty equivalent to those that exist when the person making the statement is a person without this type of disability.
Which articles does the rule modify?
These are the articles modified with the rule on inheritance for persons with sensory disabilities, and their new wording:
Article 421.8.
Will granted by a person with sensory disability.
1. If the testator has a sensory disability at the time of making a will, the notary must apply the provisions of this code. In any case, the notary must offer the testator the necessary support and means to testate, without any additional financial burden for the testator. The professional association must provide the notary with such means.
2.The provisions of paragraph 1 shall also apply in the event that a person with a sensory disability acts as a witness in the execution of a notarial will.”
Article 421.10.
Paragraph 2.
Witnesses
1. In the execution of a notarial will, the intervention of witnesses is not required, unless the testator has special circumstances or the testator or the notary so requests.
“2. Special circumstances concur in the testator if for any cause he does not know or cannot sign. Special circumstances are not considered to be present if he has a sensory disability.”
[Previously item 2. considered “special circumstantial” the fact that the testator was blind or deaf, or that, for any cause, he did not know or could not sign or declare that he does not know or cannot read the will on his own. Now, these cases are no longer considered special circumstances].
Article 421.11.
Suitability of witnesses
1.The witnesses, if they must intervene, are two, must understand the testator and the notary and must be able to sign.
It is not necessary that they should be requested, nor that they should know the testator, nor that they should have the same residence as the testator.
2. They cannot be witnesses:
a) Minors and those incapable of testating.
b) Those convicted of forgery of documents, slander or false testimony.
c) Those favored by the will.
d) The spouse, the cohabitant in stable partnership and the relatives within the fourth degree of consanguinity and the second degree of affinity of the instituted heirs or the designated legatees and of the authorizing notary.
The causes of ineligibility apply, in addition to the persons referred to in paragraph 2, to the practitioners, interpreters and experts who intervene in the will.” [Anteriormente existía un punto que negaba a “los sordos, los ciegos, y los mudos que no puedan escribir” la posibilidad de ser testigos.]
Article 421.14.
Drafting of closed will
1.The closed testament is written by the testator, either in autograph form, in Braille or by other technical means, or by another person at his request, with the expression of the place and date.
If it is written by another person at the request of the testator, this circumstance must be stated and the said person must be identified and must sign with the testator at the end of the testament.
2.The testator must sign on all the sheets and at the end of the will, after having saved the words amended, crossed out, added or between the lines.
If the will has been drawn up on electronic media, it must be signed with a recognized electronic signature.
If the testator does not know how or is unable to sign, another person may sign on his behalf, who must sign at the end of the testament and on all the pages, after stating his identity and the reason for the testator’s inability to sign.
4.The document containing the will must be placed in a closed cover so that it cannot be removed without damaging it.
5.Closed wills cannot be granted by those who do not know or cannot read.”
[Dentro de las limitaciones para poder otorgar testamento cerrado se elimina la referencia a las personas ciegas y se permite que las personas con discapacidad visual puedan otorgar un testamento cerrado.]
Use of means to compensate for sensory impairment
Finally, the rule on inheritance for persons with sensory disabilities ensures that, at the request of the grantor, Braille, sign language, lip reading or other linguistic or technical means must be used in the execution of wills and other notarial documents of an inheritance nature to compensate for the sensory disability that affects oral comprehension, reading or writing.
For this reason, the Association of Notaries of Catalonia, within six months of the publication of the law, must sign with the Generalitat, with other administrations and public bodies or with non-profit entities the necessary agreements to be in a position to comply with this point.
In addition, the standard states that The notary must be the one who, in each case and depending on the grantor’s personal circumstances, assesses his or her capacity for understanding and communication skills, whether or not he or she has a sensory disability. He or she must also provide you with the support and means necessary to make a will, without any financial burden, and the same applies in the event that he or she acts as a witness in the execution of a notarial will. If you need help in any matter related to succession and inheritance, please contact our lawyers .
