Can restrictions be placed in the will?

The freedom of the testator when granting a will is a legally consolidated fact. The Charter of Fundamental Rights of the European Union recognizes the right to bequeath those legally acquired assets (art 17 CFREU), and the Spanish Constitution includes the right to inheritance (art 33 EC) and allows the legislator to regulate it. The power of individuals to decide the fate of their assets and, therefore, the freedom of the testator is enshrined. The succession is carried out according to the will of the deceased, provided that this has been stated in a will granted in accordance with the law (art 421-1 CCCat). Beyond those minimum requirements imposed by the legislator (in the Spanish case, the figure of the legitimate), it is possible to dispose of the assets at will. 

Consequently, it is possible not only to dispose of the assets, but also to establish conditions and clauses for the acceptance of the inheritance. These conditions and clauses have a main limit: they must not be contrary to the law or good customs, or they will be considered as not set (art 792 CCEsp). Therefore, those conditions that, if maintained, would give rise to an act counter legem or a violation of the right. For more information, consult the inheritance acceptance documents.

The non-litigation clause

A common figure in wills is the non-litigation clause, or prohibitive clause of judicial intervention and effective judicial protection. Those clauses in which the testator prohibits challenging the will or going to court are considered as such. During the making of the will these clauses are especially attractive. They can help prevent conflicts from escalating and/or spilling over, and protect the integrity of the will. Its existence may allow the testator to prevent the heirs from abusing judicial intervention to obtain greater rights than those recognized. A will that cannot be judicially modified is a will that is maintained according to the will of the testator.

However, the use of these clauses has been discouraged by the art 223-18 CCat which declares that those clauses that prevent the contestation of the will will be considered as not formulated. The non-litigation clause has no legal force to prevent challenge, and its existence will be ignored by the courts. The legislator's motivation is to ensure effective judicial protection and maintain legal certainty. The prohibition is intended to ensure that those who find themselves before an inheritance with null or manifestly illegal conditions, access to a legal solution and effective judicial protection (art 24.1 EC).

Why put them, if they are considered unformulated?

There are those who consider that, since they will not be taken into account by the judge, it is not worth formulating these clauses. However, most wills do not come before a judge; and its effectiveness is based on his authority as the last expression of the will of the deceased. That the testator establishes his opposition to the conflict between heirs, emphasizes his will. The testator is free to dispose of his assets in inheritance, and the disposition that he makes must be respected as long as it is in accordance with the law. The non-litigation clause is established not as a norm of legal effectiveness, but as a norm of moral effectiveness. It reminds the heirs that the litigation, the discussion, are directly opposed to the will of the testator, and can encourage extrajudicial resolution. Granting a will where the will of the person is clearly seen gives greater security to the heirs.

From our notary's office we advise that the will be drawn up clearly, avoiding possible conflicts. In those cases in which the management of the inheritance may be conflictive, we recommend establishing a executor. In addition, we recommend the use of the non-litigation clause to express the will of the testator.

If you want to make a will or need advice, do not hesitate to contact with us, at Notary Bosch-Bages.