Contesting a will in Spain: when it can be set aside and how
A will is not untouchable. It can be annulled if the person who signed it lacked capacity, if they were pressured or deceived, if the notary did not observe the formalities, or if it leaves out someone the law protects. We explain the grounds that work, the ones that do not, and how each is proved.
What contesting a will means
Contesting a will means asking the court to declare it void, in whole or in part, on a ground laid down by law. It is not enough that the division is unfair, or that the testator «changed their mind» towards the end of their life: the law allows free disposal of the third of the estate that is freely disposable and, to a large extent, of the betterment third as well. What can be attacked is that the will is not valid, not that it is unfavourable.
Before embarking on anything it is worth separating three situations that people tend to mix up: the will that is void (it does not stand, because an essential requirement is missing), the valid will containing dispositions that cut into the forced share (those are reduced; the will itself is not annulled) and the valid will that we simply do not like (there is no claim). Much of our work in the first meeting is telling you frankly which of the three you are in.
If you are used to English or American law, start here. In Spain a parent cannot leave their estate to whomever they please. Two thirds of it are reserved by law for the children and other descendants — the legítima, or forced share (art. 808 CC) — and only the remaining third is freely disposable. So a will that leaves a child with little or nothing is not simply the testator’s prerogative, as it would be in England or in most of the United States: it may have to be cut down even if the will itself is perfectly valid. The two routes are different, and so are the time limits.
Grounds that do succeed
Lack of capacity of the testator
This is one of the most frequently pleaded grounds and the hardest to prove. The law starts from the position that anyone may make a will unless, at that moment, they cannot form or express their wishes (arts. 662 and 663 CC); the case law presumes the testator’s capacity, and the notary records that, in their judgement, the testator has it (art. 696 CC). Displacing that presumption requires solid medical evidence: clinical records, reports of cognitive decline from before and after the will was made, witnesses who can describe the testator’s real condition around those dates and, almost always, an expert. A diagnosis of dementia does not of itself annul a will; what is decisive is the testator’s state at the precise moment of signing.
Since the 2021 reform on disability, a person with support measures in place may make a will, and the notary must see to it that they understand and express their wishes with whatever support is needed (art. 665 CC). That makes proof of incapacity more demanding, not less: it has to be shown that in that particular act the testator could not form and express their wishes.
Vitiated consent: force, deception or fraud
A will made under violence, deception or fraud is void (art. 673 CC). In practice this is the relative or carer who isolates the testator, pressures them, misleads them about how the other children have behaved, or «accompanies» them to the notary rather too closely. It is proved by circumstantial evidence: abrupt changes from earlier wills, the testator’s dependence on the person who benefits, isolation from the rest of the family, successive wills within a short period, the choice of a notary far from home. None of these is enough on its own; taken together, they can be.
Defects of form
A will is a formal act, and the absence of the solemnities the law requires makes it void (art. 687 CC). In an open notarial will they are rare, but they exist: defective identification of the testator, a break in the single act, the absence of witnesses where witnesses were required (art. 697 CC), a notary without jurisdiction. In a holograph will (testamento ológrafo, one written out by hand by the testator) defects are far more common: no complete date, no signature, alterations not initialled, or the will not produced in time for the five-year period for its authentication (art. 689 CC).
Omission of a forced heir and unjustified disinheritance
If the testator leaves out a forced heir (preterición, omission, art. 814 CC) or disinherits one without a legal ground being proved (art. 851 CC), the will does not necessarily fall as a whole: in unjustified disinheritance the appointment of heirs is annulled only to the extent that it harms the person disinherited (art. 851 CC); in omission the effect ranges from a reduction of the appointment of heirs to the annulment of all the dispositions of property, where all the children were left out unintentionally (art. 814 CC). We deal with this in detail in the guide to forced heirship, omission and disinheritance.
What is not a ground
- That the will is unfair or unequal between siblings: within the limits of the forced share, the testator divides the estate as they wish.
- That the testator was of advanced age or had some illness: what matters is capacity at the moment the will was made.
- That there is an earlier will that was more favourable: a valid later will revokes the earlier one (art. 739 CC).
- That the testator said something different out loud: verbal promises count for nothing against a will.
Who can contest, and what is gained
A will may be contested by those who would be entitled to inherit if it were annulled: the heirs under the earlier will, forced heirs who have been prejudiced, or the heirs on intestacy (those the law calls where there is no valid will). A brother or sister of the deceased, for example, only has an interest if annulling the will would make them an heir.
If the court declares the will void, the estate is governed by the earlier valid will, where there is one, and failing that the intestate succession opens with a declaration of heirs. That is why, before suing, we work out what you would end up with in each scenario: there are claims that are won without improving the client’s position at all.
How we approach it. We first obtain copies of all the wills made by the deceased (the certificate of last wills lists them), the clinical records of the last few years, and we speak to the people who dealt with the testator. On that basis we tell you whether there is a case and what reasonable prospects it has, before you spend anything on a court agent or an expert.
Time limits: why it pays to move early
The period for contesting depends on the ground relied on and is not always settled in the courts. Radical nullity (complete absence of capacity, essential defects of form) has been treated either as not subject to any limitation period or as subject to the general period for personal claims, which since 2015 is five years (art. 1964 CC); voidability for vitiated consent is usually treated, by analogy, as subject to the four-year period (art. 1301 CC). Whatever the legal debate, there is a practical reason not to wait: medical and witness evidence is lost with time, and assets may by then have been sold to third parties.
How we handle it, step by step
Wills and the last wills register
Certificate of last wills, authorised copies of every will, and a comparison between them: what changed, and when.
Clinical records and witnesses
Medical reports from the years before and after, medication, admissions to hospital, and conversations with those who dealt with the testator.
Opinion and prospects
We tell you in writing whether there is a ground, with what evidence, and what you would obtain if the claim succeeds. If there is no case, we tell you that too.
Claim and expert evidence
Ordinary civil proceedings before the court for the deceased’s last domicile, with a medical expert and, where appropriate, measures to stop the assets being dispersed.
Deadlines worth not letting slip
- Four years is the prudent period for vitiated consent (art. 1301 CC, applied by analogy and without unanimous authority); for radical nullity the debate lies between no limitation period at all and the five years of art. 1964 CC. Either way, it is worth taking advice early: the evidence disappears.
- Five years from the death to authenticate and formalise a holograph will before a notary (art. 689 CC); once that period has passed it can no longer be formalised.
- Six months for inheritance tax from the date of death, even while the will is being disputed; an extension can be applied for within the first five.
Common questions about contesting a will
My father had a diagnosis of dementia when he signed the will. Is it automatically void?
No. The diagnosis is strong evidence, but what has to be proved is that at the moment of signing he could not understand and decide. The clinical records from those dates, the medication and the witnesses are what tips the balance.
The will leaves almost everything to one of my siblings. Can we contest it as unfair?
Not as unfair. You can claim the forced share if the division cuts into it (two thirds of the estate for the children, with the betterment third inside that), and you can also contest the will if there is evidence of pressure or lack of capacity. We look at that with the earlier wills in front of us.
What happens if the will is annulled?
The earlier valid will governs, if there is one. If not, the intestate succession opens and those the law designates inherit, in order: descendants, ascendants, spouse and collateral relatives.
Can a grandchild or a sibling of the deceased contest the will?
Only someone whose position would improve if the will were annulled: if the will falling would make them an heir, they have standing; if not, they do not.
How long does it take and what does it cost?
Ordinary civil proceedings with expert evidence normally take more than a year at first instance, depending on the court’s workload. Our fees are quoted in writing after the initial review, which is the first thing we do and what tells you whether it is worth going on.
Where we work
Our office is in Villanueva de la Cañada, and we regularly act in Majadahonda, Las Rozas, Boadilla del Monte, Pozuelo de Alarcón, Brunete, Villanueva del Pardillo, Valdemorillo and the rest of western Madrid. Succession proceedings are heard by the court for the place where the deceased was last domiciled, not where the heirs live: if you live outside the area, or outside Spain, that is no obstacle to our handling the case. This guide forms part of our inheritance and succession practice.
Tell us about your case
If you suspect that a will does not reflect what your relative really wanted, bring us the certificate of last wills and whatever medical records you have. We study every case before taking it on, and we tell you frankly whether it has any prospect of success.
First consultation: quoted before we start.
28691 Villanueva de la Cañada (Madrid)