The Provincial Court of Badajoz upholds the right of a person with a disability to make a will

In April 2013, Court of First Instance no. 4 of Badajoz issued a judgment depriving a person with a recognised physical and mental disability of 70% of the ability to make a will.

Spanish law provides that, where no judgment has ruled on the testamentary capacity of a person who lacks legal capacity, their will may be authorised provided the notary appoints two witnesses who have previously assessed the testator. In this case, however, the judgment directly prohibited the person from making a will.

The Provincial Court of Badajoz (Second Section) has now taken a step forward and recognised that person’s right to make a will under Article 12 of the International Convention on the Rights of Persons with Disabilities, adopted in New York on 13 December 2006 and in force in Spain since 3 May 2008: persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life, and, as a general rule, it is the person themself who should make their own decisions.

The court considered that, in this case, the notary’s duty to verify the testator’s judgement and reasoning is a sufficient safeguard to protect persons with disabilities, and that depriving them of their right to make a will in advance is disproportionate. It stressed that depriving the person of one of their rights would be more harmful than the risk itself materialising — without prejudice to the notary’s duty to carry out whatever checks they consider necessary to confirm that the person is making the will in accordance with their own wishes.