The Civil Code allows making a will without a notary when the person is about to die and there is no time to call one. It is the will in imminent danger of death under Article 700. Five witnesses suffice. However, this will is born with an expiry date and is of no effect if the family does not subsequently take it to a notary to elevate it to a public deed. Here we explain how it is executed, which time limits apply and what must be done afterwards.
What Article 700 of the Civil Code States
The text is brief: if the testator is in imminent danger of death, the will may be executed before five suitable witnesses without the need for a notary. Article 701 covers a similar case for epidemics, requiring three witnesses over sixteen years of age.
The general rule in Spain is that a will is executed before a notary (open will) or written entirely in the testator’s own hand (holographic will). A will before witnesses is an exception intended for situations in which neither of those avenues is possible: someone dying in hospital, in an accident or at home who cannot write or await the notary.
When Imminent Danger of Death Is Deemed to Exist
The law does not define “imminent danger”. The Supreme Court interprets it strictly: there must be a real and immediate risk of death, perceptible at that moment, and not merely a serious illness. A person with terminal cancer who still has several weeks to live is not in imminent danger for the purposes of Article 700. A person suffering a heart attack, a haemorrhage or a sudden deterioration that suggests death within hours or days is.
What matters is that the urgency prevents attending the notary’s office. If the notary can attend, he or she must be called. Notaries travel to hospitals or homes when the situation so requires, and the open will they authorise neither lapses nor requires subsequent formalities.
Requirements of a Will Executed Before Five Witnesses
The Five Witnesses
There must be five, present simultaneously, and all “suitable”. Article 681 of the Civil Code excludes minors, persons who do not understand the testator’s language and those lacking the necessary discernment to act as witnesses. Article 682 further provides that heirs and legatees named in the will, their spouses and relatives up to the fourth degree of consanguinity or affinity may not act as witnesses. The only exception concerns legacies of movable property or modest sums of money.
This excludes almost all close family members who stand to inherit. In practice, witnesses are usually neighbours, friends, healthcare staff or work colleagues. Moreover, Article 685 requires the witnesses to know the testator and to verify that he or she has testamentary capacity.
Content and Form
Article 702 provides that the will shall be written down “if possible”. If someone is able to take notes, it is advisable to record the testator’s words, include the date and place, and have the document signed by the testator (if able) and the witnesses. If writing is impossible, a verbal will is valid even if the witnesses cannot write. In that case the witnesses must later reproduce before a notary what they heard.
The testator must express his or her wishes clearly and completely at that moment. It is insufficient for a witness to interpret what the testator “probably wanted”. The more specific the better: who inherits, which assets, in what proportions, and any specific legacies.
The Will Lapses: The Two Time Limits in Article 703
This is the point most families overlook. A will executed in danger of death becomes ineffective in two situations:
- If two months elapse from the moment the testator ceases to be in danger of death. In other words, if the person recovers, he or she has two months to attend a notary and execute an ordinary will. Once that period expires, the will made before witnesses ceases to be valid.
- If the testator dies within that period, the will also becomes ineffective unless, within the three months following death, it is presented to the competent notary to be elevated to a public deed.
Article 704 completes the rule: wills executed without the intervention of a notary are ineffective if they are not elevated to public deeds and protocolised in the manner required by notarial legislation. Without this step, it is as if no will existed and the estate passes under intestate succession.
How to Elevate the Will to a Public Deed: Verification and Protocolisation
Until 2015 this procedure was carried out before a judge. Law 15/2015 on Voluntary Jurisdiction transferred it to notaries and regulates it in Articles 64 and 65 of the Notaries Act. The procedure is as follows:
- Select the competent notary. This may be the notary of the place where the will was executed, of the testator’s last domicile or habitual residence, of the place where the greater part of the estate is located, or of the place of death. The choice is made by the person submitting the application.
- Submit the application within three months. Any person with an interest in the estate may do so. The death certificate, the certificate from the General Registry of Last Wills and Testaments, and, if it exists, the document recording the will must be provided.
- Statements by the witnesses. The notary summons the participating witnesses. They declare under oath or affirmation as to the circumstances of execution: whether the testator was in danger of death, whether he or she had capacity, and what dispositions were made. If the will was written, they acknowledge their signatures. If it was verbal, they must reproduce its content accurately.
- Deed of protocolisation. If the notary considers the authenticity of the will sufficiently proven, he or she authorises the deed of protocolisation and the will acquires the same force as a notarial will. If authenticity is not proven, or if the witnesses’ statements are inconsistent, the notary closes the deed without protocolising the will. The interested parties may then apply to the courts.
The requirement that the witnesses’ statements coincide is what causes many verbal wills to fail. Five people who remember differently what a dying person said will rarely provide identical accounts. That is why, whenever possible, the will should be written down.
Differences from the Holographic Will
The holographic will (Article 688 of the Civil Code) is written entirely in the testator’s own hand, dated and signed, and requires no witnesses. It must also be verified and protocolised before a notary after death, within a five-year period. If the testator is able to write, the holographic will is usually preferable to a will before five witnesses: it does not lapse after two months, does not depend on anyone’s memory, and the time limit for protocolisation is considerably longer.
What Applies in Catalonia and Other Territories with Their Own Law
The Catalan Civil Code does not recognise wills before witnesses. In Catalonia only notarial and holographic wills are valid. Aragon, Navarre, Galicia, the Basque Country and the Balearic Islands have their own succession rules that regulate exceptional wills differently. Before accepting a will made in danger of death, it is advisable to confirm the deceased’s civil domicile.
Can This Will Be Executed by Videoconference?
No. Law 11/2023 permits notarial videoconferencing for a closed list of acts, and a will is included only in the case of a declared epidemic with lockdown. Neither an open will nor a will granted before witnesses may be signed remotely. What may be arranged remotely is the preparation of the will and the organisation of the notary’s visit to the hospital or home.
How Many Witnesses Are Required for a Will in Imminent Danger of Death?
Five suitable witnesses, all present at the same time. In the case of an epidemic, Article 701 reduces the number to three witnesses over sixteen years of age. Heirs, legatees and their close relatives may not act as witnesses.
How Long Is a Will Executed Before Witnesses Valid?
Two months from the moment the testator ceases to be in danger of death. If the testator dies within that period, the family has three months from the date of death to present the will to a notary for elevation to a public deed. If this is not done, the will becomes ineffective.
Who May Request the Notary to Protocolise the Will?
Any person with a legitimate interest in the estate: heirs, legatees, the spouse or anyone believing they have rights over the inheritance. The request must be made within three months of the death before one of the notaries competent under Article 64 of the Notaries Act.
How We Can Help You
If a family member is seriously ill and wishes to make a will, the first step is to arrange for a notary to attend. At Notaría Online we coordinate the visit of a practising notary to the hospital or home and prepare a draft in advance so the signing is swift. If death has already occurred and a will was executed before witnesses, we arrange with a competent notary the deed of verification and protocolisation within the three-month period. You may consult our wills or inheritances service.