MULTIPLE WILLS – DUPLICITY OF WILLS
Can a person make several wills and have them be valid?
The answer is yes. There can be several Wills in a person’s name, and all of them can be valid, regardless of the date they were signed.
There is a widespread belief that only the last testament is valid. This belief is based on Art. 739 of the Civil Code, which says:
“Previous testament is revoked by law by the other subsequent (the last one), if the testator does not express in the latter his Will that the previous subsist in whole or in part» .
However, we are going to show in this article that this belief is not true.
A person can sign as many Wills as he wishes to, and he can perfectly decide that all of them are valid.
For this, the only condition that is required is that they are all COMPLEMENTARY and that THERE IS NO CONTRADICTION between them.
In addition, the previous Wills must not have been REVOKED by the testator. That is, the testator must not have expressed that he revokes all or part of any of the previous Wills.
There must be an “express intention” on the part of the testator to make the previous Will valid.
Continuing with Art. 739, what it says is that the previous will is valid as long as the testator has expressed his will that said will subsist.
But, how should the testator express his desire to give validity to the previous Will?
It is clear that if he expressly says so in the subsequent Will, the doubt ends. But what happens if he doesn’t expressly say so? Can the Will of the testator be interpreted through his acts or the same content of the wills?
The answer is again YES.
For example, let’s take the case that the last testament is limited to establishing several legacies, but does not regulate the distribution of the hereditary patrimony as it is done in the previous testament. It could easily be interpreted that the intention of the testator is to draw up an “additional” or “accessory” Will to the previous one.
Another example is when we talk about wills that regulate the succession in the case of different assets or properties, or that are located in different places. Here we can talk about the assumption, very widespread in practice, of the wills of foreigners, especially British, with properties in Spain, who have been recommended for decades to make several Wills:
- A Will that regulates the inheritance of the testator’s assets and properties in the country of his nationality or residence (in this case, UK)
- Another Will to regulate properties located in Spain
In the above examples, it is clear that the intention of the testator was to maintain the validity from both Wills.
Therefore, when there is no express revocation by the testator to revoke or annul the previous will, what must be done is a study of the will of the testator to determine what it was.
This is also expressed by Spanish jurisprudence and Courts.
Therefore, are valid the Wills of British who have made a Will in the United Kingdom to regulate their properties in the UK exclusively, and another in Spain for their properties in Spain, even if they are of a different date?
The answer is yes. As long as:
1.- Both wills must be complementary and cannot be contradictory to each other
2.- There is no express revocation of the previous will in the content of the last will.
And if the Will only regulates certain properties and does not include others existing in the name of the testator?
In this case, the succession of the properties that are regulated in the Will will be governed by the content of the Will, and those that are not included must be processed according to the rules of intestate inheritance or “ab intestato”.