1. What is a last will and testament?
A last will and testament, also referred as will, is an act through which a person decides about what happens to property, money, estate and other assets after his death.
A will is also a unilateral act since it is not legally possible for two persons to make a will in the same act, either for the benefit of each other or for the benefit of others.
2. Who can make a will?
Anyone can make a will as long as the law does not declare him/her unable to do so. Children under 18 (not emancipated) and older adults who need monitoring under the terms of Adult Companion Law (people with disabilities or pathology that justify the appointment of a companion, under the terms of the law) can’t make a will.
Wills carried out by those who are not able to make them under the law are null and have no effect.
3. What are the formalities involved?
The most usual forms of wills are public wills and closed wills.
The public will is drawn up in a notary in the notary book.
The closed will is written and signed by the individual who wants to make the will – or by others at his request- and is approved in accordance with the notary rules.
There are also special forms, applicable in very particular situations, namely the will carried out by soldiers in the field, as well as onboard ships and aircraft, and even in situations of public calamity.
4. Can a will affect inheritance rights of the legitimate heirs (spouse, children/grandchildren, parents/grandparents)?
There are some heirs, called legitimates, who are entitled, under the law, to a portion of the estate that cannot be freely disposed of in a will.
Legitimate heirs are the spouse (who has not renounced this quality before the marriage), sons (or grandsons) and fathers (or grandfathers), in order and according to the rules of legitimate succession.
The portion of assets that cannot be disposed of changes according to the legitimate heirs who compete for succession.
If only the spouse survives the deceased, leaving no children, grandchildren, parents or grandparents, his portion corresponds to half of the inheritance. The remainder may be left, in will, to other people.
If, however, the deceased’s children compete with the spouse, the portion of the inheritance which cannot be freely disposed of amounts to 2/3 of the inheritance. In this case, the will can only refer to the remaining third of the assets/estate.
If no spouse survives the deceased, the legitimate heirs will be his children (or grandchildren) and, in this case, the portion of the inheritance that belongs to them shall be half (one child) or two thirds (two or more children) of the assets.
If only the spouse and parents (or grandparents) survive, they are entitled to 2/3 of the inheritance.
Finally, if there is no spouse or children (or grandchildren), the parents (or grandparents) will be the only legitimate heirs. In this case, they will be entitled to half or 1/3 of the inheritance, depending on whether they are parents or grandparents/great-grandparents / etc.
The assets disposed of in the will cannot affect the portion of the inheritance that belongs to these legitimate heirs and, if this happens, the will dispositions shall be reduced accordingly.
5. What if the person who makes the will wishes latter to update or revoke it?
Can the person who makes the will revoke it or change it?
Yes, the will is revocable. This means that, at any time, that person can revoke his previous will. The revocation must be included in a new testament or public deed.
The revocation can also be tacit. This happens when a new testament is made that is incompatible with the first. However, if the second testament is revoked, the revocation of the first testament will not be affected.
In the case of a closed will, if it is destroyed or turned to pieces and if there is no will at the date of death, it will be considered revoked.
6. Can I make a will in favor of any person?
No, there are people whose relationship with the person who makes the will prevents them from benefiting from it. This includes the doctor or nurse who has provided care to the one who made the will in the context of the illness that caused him to die. This, of course, if the will was granted during the period of illness. The same is true of the priest who accompanied him/her in his last moments.
Likewise, the will made in favour of the person with whom the person who made the will committed adultery is void unless the marriage was already dissolved at the date of death or when at the date of death the one who makes the will was already separated from his spouse for more than six years. However, even in such cases, the will is valid if the person who made the will has limited himself to ensuring the maintenance of the beneficiary.
7. In which circumstances can the will be declared null or void?
As a general rule, we can say that the will can be declared null or void if, for any reason, it does not correspond to the will of its maker, either because he suffers from a disability that affects him permanently, or because he was temporarily disabled, or because he was not in a position to express his will freely and validly. Accordingly, wills in which the maker was influenced by error, deceit, or coercion will be void.
The deadlines for the lawsuit regarding nullity and annulment are, respectively, ten and two years from the date on which the interested party became aware of the existence of the will and the cause of the invalidity.
8. What assets can be left in a will?
The will can cover part or all property, money or assets. As we have already seen, the will cannot offend the rights of legitimate heirs, if they exist.
9. What is the “testamentaria”?
The one that makes the will may appoint one or more persons to carry out the content of the will or monitor compliance with it. This is called in Portuguese law “testamentaria”