Law 8/2021 of June 2, which reforms civil and procedural legislation to support people with disabilities in the exercise of their legal capacity.

This new legal regulation of reform of numerous legal texts, since it modifies, among others, the Notarial Law, the Civil Code, the Civil Procedure Law, the Penal Code and the Commerce Code, implies, as stated in its STATEMENT OF MOTIVES, the adaptation of our legal system to the International Convention on the Rights of Persons with Disabilities, made in New York on December 13, 2006, an international treaty that in its article 12 proclaims that people with disabilities have legal capacity on equal terms with others in all aspects of life, and obliges States Parties to take appropriate measures to provide persons with disabilities with access to the support they may need in the exercise of their legal capacity.

And it implies a paradigm shift in Spanish law, since the person's incapacity disappears.

This modification affects the succession system and undoubtedly the regulation of the capacity around it, as well as the maintenance or not of the legitimate and being so novel, it seemed to us to be an extremely interesting topic for today's exhibition and therefore it is what I am going to explain to you in accordance with the systematic order established in the Civil Code.

Let's think about the following clauses

A.) In the event that my son Carlos is a minor, upon my death, I appoint my cousin Mariano, whom I trust, as guardian of his person and property.

First of all, it should be noted that guardianship, as we know it, is limited to minors; likewise, extended parental authority disappears. The new regulation maintains the possibility that parents, who have not been deprived of parental authority, since otherwise they become ineffective, can appoint a guardian in a will or in a public notarial document or establish guardianship oversight bodies. as well as designate the people, now also entities, who must integrate them or order any disposition regarding the person or property of their minor children.

Since incapacity has disappeared from our legal system, this appointment of guardian is restricted to minors.

The judicial binding to these provisions is also maintained unless the interest of the minor justifies otherwise. And the possibility that those established by the parents may be contradictory, always prioritizing the interest of the minor.

As provided, the guardian will be designated, first of all, the person or persons designated by the parents in a will or public notarial document. As a novelty compared to the current system, which allows the judge in a reasoned resolution to appoint guardian to a person excluded by the parents in their testamentary dispositions, in the new regulation it is configured as a prohibition that binds the Judge and that cannot be excluded by him .

On the contrary, THE POSSIBILITY OF DISPENSATION IN TESTAMENT OF THE CAUSES OF DISABILITY OF GUARDIANS DISAPPEARS, HOWEVER THE DEPRIVATION OF LIBERTY HAS BEEN DELETED AS A CAUSE OF DISABILITY AND IS QUALIFIED BY REMOVING THE QUALIFICATION OF IMPORTANT IN CASES OF CONFLICT OF INTEREST.

B.) I bequeath to my nephew Miguel the home of my property located at Calle Larios number 4, 3B in the city of Málaga, registered property 5674, expressly providing that the administration and disposal of the same be exercised, without the need for judicial intervention, by Don Mario Salazar Peréz, with D.N.I. 34,654,345-J, until the legatee reaches the age of majority.

A significant novelty is found in article 205 of the Law since it provides for the possibility that the disposer of assets free of charge, both inter vivos and mortis causa, in favor of a minor can establish the rules of administration and disposal.

At this point, progress has been significant since it allows the disposal of these assets, it seems, without the need for judicial authorization. Here we must ask ourselves if there could be any limitation to this delegation of the dispositive power when it comes to assets awarded in payment of the minor's legitimate interest. On the other hand, the regulation maintains that the powers not conferred on the administrator correspond to the guardian, ignoring the possibility that the assets may be received by minors subject to parental authority.

This same legal provision established for minors is applicable to people with disabilities of legal age, although in this case and since the figure of the guardian has disappeared, the powers not conferred on the administrator will be exercised by the beneficiary of the provision with the appropriate support. . Therefore we understand that the disposer can also exclude judicial authorization for the disposal of these assets.

CAPACITY TO MAKE A WILL WHO CAN MAKE A WILL?

Next we move on to analyze who can make a will, since as we have seen, incapacity disappears and the person's capacity is assumed.

Previous writing

Article 663.

They are incapable of making a will:

1. Children under fourteen years of age of both sexes.

2. He who habitually or accidentally is not in his right mind.

Article 663 is worded as follows:

«They cannot testify:

1. The person under fourteen years of age.

2. The person who, at the time of making a will, cannot form or express his or her will, even with the help of means or support to do so.

Article 665.

Whenever the person incapacitated by virtue of a ruling that does not contain a statement about his capacity to make a will intends to execute a will, the Notary will designate two doctors who previously recognize him and will not authorize it until they are responsible for his capacity.

This article, which was roughly maintained in the project, has been worded completely differently in the approved text.

Article 665 remains as follows:

«The person with a disability may execute a will when, in the opinion of the Notary, he or she can understand and express the scope of its provisions. The Notary will ensure that the grantor develops his own decision-making process, supporting him in his understanding and reasoning and facilitating, with the necessary adjustments, the ability to express his will, wishes and preferences.

In the new system, and since there is no judicial incapacity, it is left, in accordance with article 665, at the discretion of the Notary to determine the capacity of the testator without the need for the presence of two doctors to previously recognize the testator, even though we can understand that In order to ensure the ability to understand and manifest the provisions, the Notary may use medical certificates or the presence of doctors.

The question arises as to whether or not it is necessary to consult the support measures established judicially.

FORMS OF WILLS

OPEN

Regarding the forms of the will, for open wills, article 695 introduces the possibility for the testator to express, in addition to orally or in writing, through any other technical, material or human means his last will to the Notary. Which COULD MEAN that the human environment were FRIENDS OR RELATIVES or the FACT GUARDIAN or THE CURATOR.

In article 697, THE NEED FOR WITNESSES IS REMOVED FOR PEOPLE WHO CANNOT OR DO NOT KNOW HOW TO READ THE WILL.

CLOSED

Regarding the form of the closed will as adaptation and recognition to new technologies, new article 706 establishes the possibility of it being drafted in electronic format, and signed with a recognized electronic signature.

Which seems to indicate that A HANDWRITTEN SIGNATURE is no longer NECESSARY.

Likewise, article 708 provides for the possibility that people with visual disabilities can grant it, using mechanical or technological means that allow them to write and read it. These people with visual disabilities, when presenting the will, must have expressed on the cover, by mechanical or technological means that allow them to read what is written, that their will is contained within it, expressing the means used and that the will is signed by them.

ABILITY TO HAPPEN

Modifications that are introduced regarding the capacity to succeed with or without a will.

The new article 753 establishes that testamentary provisions made in favor of the guardian or curator do not take effect while these institutions are in force, regardless of whether accounts have been rendered or not, in contrast to the current system that allows it in the latter case, this limitation disappears when said positions are held by relatives with the right to succeed ab intestate, and not, as until now, they only disappeared when these positions fell on ascendants, descendants, spouses or siblings, therefore, once the modification comes into force they may be made in favor of uncles or nephews who hold the position.

This implies the possibility that these provisions can be made in favor of the de facto guardian.

On the other hand, the same article establishes the nullity of the provision made by people who are hospitalized for reasons of health or assistance, in favor of their caregivers who are owners, administrators or employees of the public or private establishment in which they were interned, as well as the establishment itself. However, it allows them in favor of other natural persons who provide care, assistance, or services of a similar nature to the deceased, as long as they are made in an open notarial will.

We can understand from this that a WILL COULD BE MADE IN FAVOR OF THE NURSE WHO TAKES CARE OF YOU IN YOUR PRIVATE HOME BUT NOT THE ONE WHO TAKES CARE OF YOU IN A NURSING RESIDENCE?

Regarding the causes of indignity, they adapt to the new concept of disability in the wording of article 756.

MODIFICATIONS INTRODUCED IN THE SUBSTITUTION

The new wording of the civil code affects two of the substitutions in our system.

The exemplary substitution regulated in the still current Article 776, which establishes that “the ascendant may appoint a substitute to the descendant over fourteen years of age, who, in accordance with the law, has been declared incapable due to mental insanity.

The substitution referred to in the previous paragraph will be ineffective by the will of the incapacitated person made during a lucid interval or after having recovered reason.”

THIS SUBSTITUTION DISAPPEARS when said article is left without content, contrary to the provisions of the draft law.

As a transitional rule, the fourth transitional provision. Regulates substitutions made under article 776 of the Civil Code.

When a substitute has been appointed under article 776 of the Civil Code, in the event that the replaced person has died after the entry into force of this Law, the provisions of this Law will apply and, consequently, the replacement will cease. to be exemplary, without being able to replace the will of the replaced person. However, the substitution will be understood as a fideicommissary substitution of residue in terms of the assets that the substituent would have transmitted free of charge to the replaced person.

REGARDING THE IMPLICATION OF THIS LEGAL REFORM IN THE LEGITIMATE SYSTEM OF CHILDREN AND DESCENDANTS,

It has been produced fundamentally in the following ways:

1st) For the modification of THE TRUST SUBSTITUTION

Article 782.

«Fideicommissary substitutions may never encumber the legitimate interest, except when they are established, in the terms established in article 808, for the benefit of one or more children of the testator (previously children or descendants) who are in a situation of disability.

If the trust substitution falls on the third destined for improvement, it can only be established in favor of the descendants.

This modification of the civil code implies that they can only tax the strict legitimate interest in favor of disabled children but not other descendants, while the third destined for improvement can be taxed in favor of them.

2º) By the new wording of article 808 that allows the disposal of the legitimate interest of some legitimate beneficiaries in favor of others with a disability, without the need to establish a trustee substitution as currently occurs by operation of law. Disposition, which would be encumbered by a residue trust, in favor of the other legitimate beneficiaries affected by the disposition, which would prevent the beneficiary from disposing of the aforementioned assets free of charge or mortis causa.

This substitution is residual and can also be waived by the testator

We see how in this article, unlike the previous one, we talk about legitimaries and not just children.

A common problem that arises in both articles and in the Law in general is that it does not indicate the degree of disability and that it does not specify how the project was made, which covers both physical, mental and sensory disabilities. And with respect to proof, there is a provision only in article 808 in fine, establishing that “it will be up to the child who challenges the lien of his strict legitimate right to prove that there is no cause to justify it.”

In order to the above, we can consider applicable the concept of disability introduced in the fourth additional provision of the CC, by Law 41/2003 (and perhaps to people in a situation of serious and highly dependent degrees of Law 39/2006, Promotion of Personal Autonomy and care for people in a situation of dependency).

“People with disabilities are those who present a physical or sensory disability equal to or greater than 65% and those who present a mental disability equal to or greater than 33%. The degree is accredited by certificate or firm judicial resolution.”

3.-) IN BOTH CASES IT IS A LIEN ON THE LEGITIMATE EXPRESSLY ADMITTED TOGETHER WITH THE WIDOW'S USUFRUCT IN 813.

In addition to these levies, the attribution by operation of law of a right of habitation to the disabled legitimator also affects the legitimacy system, under the terms of article 822.

4.-) «The donation or legacy of a right of habitation over the habitual residence that its owner makes in favor of a legitimate person who is in a situation of disability, will not be counted for the calculation of the legitimate rights if at the time of the death both were living together in it.

5.-) This right of habitation will be attributed by operation of law under the same conditions to the heir who is in the situation provided for in the previous paragraph, who needs it and who is living with the deceased, unless the testator had otherwise provided or would have expressly excluded it, but its owner may not prevent the other legitimate beneficiaries from continuing to live together as long as they need it.

6.-) ALSO MODIFIES ARTICLE 1041, ON THE EXEMPTION OF COLLATION OF EXPENSES NECESSARY TO COVER THE SPECIAL NEEDS OF CHILDREN WITH DISABILITIES.

Notary

Citizen's service

Milagros Mantilla de los Rios Vergara