The Provincial Court of Badajoz has recognized a person with a physical-mental disability of 70% their right to make a will.
In sentence 632/2020, September 14, the Second Section concludes that “from the moment in which the notary has to verify the full judgment of the testator, there is already, as disproportionate, the early deprivation of the right.”
The victim had repeatedly expressed his interest in making a will to exclude relatives with whom he has no relationship, but until now, his declaration of incapacity did not allow him to do so.
The court made up of Luis Romualdo Hernández – rapporteur -, Fernando Paumard, and Juan Manuel Cabrera, upholds the appeal filed by the sister-guardian of the person with a disability and resolves to reinstate the affected person the power to testify, without prejudice to the examination that, upon arrival, the case must be made by the authorizing notary.
The Public Prosecutor’s Office, although recognized that it is “morally understandable the desire expressed by the person with a disability to want to benefit in future inheritance those of its siblings who provide care and attention to those others with whom it do not have a relationship,” He opposed the petition, considering that testament is “a complex legal act” that involves “the disposal of all his assets and under the full understanding of specific legal rules and regulations for hereditary distribution.”
In this judgment, the Hearing affirms against which there is an appeal, that “much has been written about the powers of intellectual disabilities when carrying out legal acts.” In this sense, “our current legislation, in general, has rather followed a paternalistic approach with both people with disabilities and minors.”
And it is that he continues, “it has been wanted to protect the subjects of their own decisions to safeguard them from abuse and undue influence. The problem is that with so much ‘protectionism’, we have forgotten their own interests, putting aside their will (greater or lesser) and their desires and preferences”.
Thus, he adds, “quite a few things have changed” since the International Convention on the Rights of Persons with Disabilities, held in New York on December 13, 2006, in force in Spain since May 3, was incorporated into Spain’s legal system.
The sentence concludes that “we must overcome the well-intentioned traditional inertia that, in the effort to protect the subject, paradoxically takes away rights.” And it is that “the simple fear or the mere possibility of undue influence may be necessary reasons, but not sufficient to deprive the right to make a will.”
Therefore, the court resolves to reinstate the affected party the power to testify, without prejudice to the examination that, if necessary, must be carried out by the authorizing notary. It underlines, among other aspects, that the affected person suffers from cognitive impairment, but his dependence is not absolute, since he is autonomous in many acts of his life. “People with intellectual disabilities who have difficulties handling money or doing banking may be mature enough to understand what the transfer of assets due to death consists of,” it says.
