In Argentina, thousands of people handwrite their final wishes without knowing the legal risks this entails. A will that does not comply with all formalities can lead to this long legal disputes between family members and interested third parties.
What the law says about wills
He Civil and Commercial Code defines a will as “a unilateral, solemn, highly personal, written and revocable legal act by which a person with legal capacity disposes of all or part of his or her property after his or her death.” Additionally, it may contain provisions regarding ownership, such as acknowledgment of a child or burial instructions.
In Argentina there are only two legal ways to write a will: the hologram (written in the testator’s handwriting) and the granted by public document (in front of a notary and two witnesses). Other modalities provided for in the old Veleza Code, such as the closed or military code, were abolished.
The holographic will: simple but risky
He holographic will This is regulated by Article 2477 of the Civil and Commercial Code. It must be completely handwritten, dated and signed by the testator. It does not require a notary or formal procedures and is therefore accessible.
However, this apparent simplicity can become a problem. To be valid it must:
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The letter must be written in full by the testator.
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Specific date included.
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To be signed according to the regulations.
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Express a clear and unambiguous will.
If any of these requirements are missing, the will can be declared invalid. Case law has established that any ambiguity in language opens the door Judicialization.
Advantages of making a will before a notary
He Notary College of the City of Buenos Aires insists that the will issued by means of a public document offers greater legal certainty. This is done through a public document in the presence of a notary and two witnesses.
Its main advantages are:
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Reliable identification of the testator.
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Write using legally correct terms.
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Checking the clarity and judgment of the founder.
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Stored in notarial records to avoid loss or destruction.
Although more formal, this type of will can be be revoked or changed whenever.
What does the judiciary decide in disputes?
When a handwritten will is challenged, judges must analyze the literal content, context, and relationship between the parties. They also check whether the legal requirements are met.
If the text does not contain clear expressions of patrimonial transfer, such as “Lego” or “Dono”, it may lose its validity and be considered only a Manifestation of desires.
Wills in foreign consulates: a current case
A failure of the National Civil Chamber (Room A) confirmed the invalidity of a will drawn up in 2012 by a Spanish citizen at the Spanish consulate in Buenos Aires. The court ruled that any will drawn up on Argentine territory must, without exception, comply with local laws.
The document lacked witnesses, which was an essential requirement, and therefore was considered invalid. The judgment recalled that the nationality of the testator or the intervention of a consul does not change the rule.locus regit actum“: The place where the act is issued regulates its formalities.
In these cases, the heirs may receive nothing, even though it is written in the will
There are cases where Heirs are not allowed to receive anything in the inheritance, even if they are listed in the will. In this case, the will will be declared null and void.
According to the law, a will can be declared void for various reasons:
- For violating a legal prohibition
- Due to formal errors
- Because it was granted by a person who had no sense at the time the will was made. The lack of justification must be proven by the person challenging the act.
- Because it was granted by a person declared legally incompetent.
- Because the testator is a person who suffers from limitations in oral communication and, moreover, cannot read or write, unless he does so by writing publicly with the assistance of an interpreter;
- For granting by mistake, fraud or force.
Other important data to consider include: The will can be revoked or changed. And in case there are two wills, “The later cancels out the previous.”
In addition, the law also states that when a person gets married, “The marriage entered into by the testator revokes the will previously made.”
In addition, “If the will is destroyed or annulled in whole or in part in the testator’s home, the destruction or annulment will be deemed to be his work until proven otherwise.”
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