Spanish Inheritance Law: Heirs, Conditions, and Legacies, Apuntes de Derecho de la seguridad social

¡Descarga Spanish Inheritance Law: Heirs, Conditions, and Legacies y más Apuntes en PDF de Derecho de la seguridad social solo en Docsity! LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 1 INDEX 10.1.- Institution of heir 10.1.1. Requirements and form A) Requirements B) Rules that govern the form of designation of the heir C) Specific cases of designation of heir D) The false cause for appointing an heir 10.1.2. Condition, term or mode in the appointment of an heir 10.1.2.1. Condition A) Impossible conditions and those contrary to the law or to good customs B) Conditions in reciprocal favor (“condiciones captatorias”): C) Discretionary (“potestativa”), causal and mixed conditions: D) Effects of the condition precedent: E) The appointment of an heir under condition subsequent (condición resolutoria): 10.1.2.2. Term: The designation of an heir at term (a plazo) 10.1.2.3. “Modo” or encumbrance. The “modal” institution A) Concept. Difference with the condition B) The acquisition by the appointed one C) The fulfilment of the “modo” and its enforceability D) The “modal” breach 10.2.- Inheritance substitutions: Concept and types 10.2.1. Vulgar substitution Concept and nature. Assumptions, modalities and effects A) Concept B) Common substitution form and effects C) Legal nature D) Relationship between vulgar substitution, transmission of ius delationis and right to accretion E) Vulgar substitution, strict forced share and betterment: 10.2.2. The fiduciary substitution or possessory trust (sustitución fideicomisaria) 10.2.2.1. Concept, characteristics, subjects and formal elements 10.2.2.2. Term and conditional fiduciary substitutions (“bajo condición o término”) 10.2.2.3. Limits to the callings 10.2.2.4. Legal position of the fiduciary (trustee) 10.2.2.5. Legal position of the beneficiary (fideicomisario) 10.2.2.6. Extinction of the fiduciary substitution. 10.2.2.7. The special case of non-simultaneous usufruct in favour of several persons with the power to dispose 10.2.2.8. Conditional fiduciary substitutions 10.2.2.9. Cases in which the substitutions shall be inoperative 10.2.2.10. The fiduciary substitution and its relation with forced shared and betterments 10.2.3. Substitution when heir is under 14 “Sustitución pupilar” and substitution when the heir is judicially incapacitated “sustitución ejemplar”: 10.2.2.1. Concept of pupillary substitution 10.2.2.2. Concept of exemplary substitutions 10.2.2.3. Legal nature 10.2.2.3. Subjects. The problem of the plurality of substitutes 10.2.2.4. Extinction. The testamentary disposition is without effect 10.3.- Testamentary legacy LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 2 10.3. The legacy. 10.3.1. Concept and characteristics: 10.3.2. Personal elements of the legacy: 10.3.3. Object of the legacy 10.3.2. The acquisition of the legacy 10.3.3. The payment of the legacy 10.3.4. The liability of the legatee 10.3.5. Termination and revocation of the legacy 10.3.6. Guarantees of the legatee and preference among legacies 10.3.7. Types of legacies 10.4.- Testament execution 10.4.1. The executorship. Concept and legal nature 10.4.2. The executor (“albacea”) 10.4.3. Duration and extension of the executorship 10.4.4. Termination of executorship 10.1.- INSTITUTION OF HEIR 10.1. The appointment of an heir. 10.1.1. Requirements and form. A) Requirements: A.1. Respect to the need to designate the heir in the testament: A last will shall be valid in accordance with the Spanish Civil Code: ◦ A) even though it does not contain the institution of an heir (eg: the entire inheritance is distributed in legacies), ◦ B) or such institution does not include the entire estate, ◦ C) and even though the person so instituted does not accept the inheritance or is incapable of inheriting. (Art. 764.1 CC) In such cases the testamentary dispositions made in accordance with law shall be carried out and the remainder of the estate shall go to the legal heirs (=herederos legítimos). (art. 764.2 CC) ◦ That is to say, the heirs of the deceased are called abintestato (intestate) and it is they who have to comply with the last will and face the hereditary debts. (art. 764 CC) ◦ However, the CC of Catalonia, that follows the Roman Law requires as a requirement sine quam non that in the testament should be included the designation of the heir. A.2. Respect to the fact if it is necessary to allocate to the heir the total inheritance or a portion thereof; or could be only appointed to receive a specific thing: Therefore, we must know who is the real heir. Does the only fact of naming a person as an heir convert him into a real heir? LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 5 “Should the usufruct be of the whole or of a share of an inheritance, the usufructuary may advance the sums chargeable upon the property in usufruct in payment of the debts of the estate, and shall be entitled to demand their return from the owner, without interest, at the expiration of the usufruct” D) The false cause for appointing an heir : ◦ The statement of a false reason for the institution of an heir, or for the designation of a legatee, shall be considered as not written, unless it appears from the will that the testator would not have made such institution or legacy had he had knowledge of the falsity of such reason. ◦ The statement of a reason contrary to law, even if it be true, shall also be considered as not written (art. 767). 10.1.2. Condition, term or mode in the appointment of an heir 10.1.2.1. CONDITION: A) Impossible conditions and those contrary to the law or to good customs : Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, eventhough the testator otherwise provided (art. 792 CC). ◦ In matters of obligations, the contrary rule is applied (art. 1116 CC): Impossible conditions, those contrary to morality, and those forbidden by law, shall make invalid any obligation dependent upon them. The condition of not doing a thing which is impossible shall be disregarded. Can the inheritance be conditioned to be unmarried? ◦ An absolute condition of not contracting a first or subsequent marriage shall be disregarded unless such condition has been imposed on the widower or widow by the deceased spouse, or by the testator who is ascendants or descendants of the latter. ◦ Nevertheless, the right of usufruct, use or habitation, or an allowance or some personal service may be bequeathed to a person for the time during which he or she remains unmarried or in widowhood (art. 793 CC). B) Conditions in reciprocal favor (“condiciones captatorias”): ◦ Any disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other person shall be void (art. 794 Cc). ◦ It would be a kind of succession pact prohibited by the art. 1271.2 CC: This article states as a basic principl that all things, even future ones, that can be object of commerce, may be the subject-matter of contracts. Nevertheless, this norm adds that no contract may be entered into with respect to future inheritances, except those the object of which is to make a division inter vivos of the estate, in accordance with Article 1056. LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 6 ◦ Moreover, we must rememeber that the Spanish Civil Code does not allow the joint testament, (testamento mancoumnado), and those conditions in reciprocal favour could have a similar nature C) Discretionary (“potestativa”), causal and mixed conditions: C.1. Any purely discretionary “potestativa” condition (positive and suspensive) imposed upon an heir or legatee must be fulfilled by him after the death of the testator when he is informed thereof. From this rule shall be excepted cases in which the condition is already fulfilled and cannot be repeated (art. 795 CcC. ◦ Note that in inter vivos dispositions this type of condition is absolutely prohibited. ◦ If the “potestativa” condition imposed upon the heir or legatee is a negative one, or consists in not giving or not doing something, he may comply by giving a guarantee that he will not do or give that which has been prohibited by the testator, and that in case he should break the condition he will return whatever he may have received, together with its fruits and interest (art. 800 CC). C.2. Causal or mixed condition: If the condition is causal or mixed, it shall be sufficient if it be fulfilled or complied with at any time before or after the death of the testator, unless he has ordered otherwise. ◦ Should it have existed or should it have been fulfilled at the time of the execution of the will and the testator did not know it, it shall be considered as complied with. If he had knowledge thereof, the condition shall be deemed fulfilled only when it can no longer exist or be performed anew (art.796 CC). C.3. Improper fulfilment with the condition: Whenever without any fault or misconduct attributable to the heir or legatee, an institution or legacy such as those referred to in the article 797 CC cannot be given effect in the exact terms prescribed by the testator, it shall be complied with in terms as nearly analogous and in conformity with his will as possible. ◦ If the person interested in the performance or non-performance of the condition shall prevent its fulfillment, without the fault or personal act of the heir or legatee, the condition shall be deemed performed (art. 798 CC). D) Effects of the condition precedent: ◦ Pending fulfilment: The ”delación” (call offering the estate) is not concluded until there is certainty over the death of the person to be succeeded, and that the offeree has a real right over the LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 7 estate: In fact, art. 991 CC states that no one can accept or repudiate an inheritance without being certain of the death of the person from whom he is to inherit, and of his right to the inheritance. Therefore, it is very important to be sure that the one to be offered it, has in fact the right to receive it. But, what happens when the inheritance is subject to a condition precedent (condición suspensiva)? In this case, the art. 801.1 CC says that if the heir be instituted under a suspensive condition the estate shall be placed in administration until the condition is accomplished or until it becomes certain that it cannot be fulfilled. Such administrator shall have the same rights and obligations as administrator of the property of an absentee (art. 804 CC). The conditionally called is legitimized to act all the measures of conservation of his right (art. 1121.1 by referral of art. 791 CC): 1121.1 CC: The creditor, before the fulfillment of the condition, may maintain any actions which may be proper for the preservation of his right. 791 CC: Conditions imposed upon heirs and legatees shall be governed by the rules established for conditional obligations in all matters not provided for by this Section. The antinomy 759 Û 799: art. 759 Cc: An heir or legatee who dies before the condition is fulfilled, even though he survive the testator, shall transmit no rights whatsoever to his heirs. Art. 799 Cc: A suspensive condition does not prevent the heir or legatee from acquiring his rights and transmitting them to his heirs, even before the fulfillment of the condition. What is the result? Doctrine and the jurisprudence of the Supreme Court consider that as art.759 refers to an case of precedent condition (condición suspensiva), the art. 799 CC refers a case of uncertain term. Fulfilment of condition: The called to the succession shall a completed “delación”, being able to accept or repudiate the succession. Fictitious fulfilment of condition: If the person interested in the performance or non-performance of the condition shall prevent its fulfillment, without fault or personal act of the heir or legatee, the condition shall be deemed performed (art. 798.2 CC) LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 10 Concept: It is the disposition of the testator by which it is ordered that another person to be put in the place occupied by the heir first appointed DIRECT OR FIRST GRADE: A call in the absence of the first. The substituted is called only when the first institute does not get to inherit INDIRECT OR SECOND DEGREE: Successive calls to inheritance. The substitute is called from certain moment: eg .: when first called dies or condition is fulfilled SUBSTITUTIONS CLASSES: VULGAR, FIDUCIARY, PUPILAR AND EXEMPLAR 10.2.1. Vulgar substitution Concept and nature. Assumptions, modalities and effects. A) Concept: ◦ Art. 774 CC: The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish or should be unable to accept the inheritance. ◦ That is, it is enough that the caller does not want or cannot accept, and it that case is called the substitute. ◦ It is understood that, in principle, it includes all the cases foreseen in art. 774 CC, but the testator can limit them. B) Common substitution form and effects: LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 11 ◦ In principle, an unlimited number of substitutes can be appointed (Article 778 CC): Two or more persons may be substituted for one; or one person for two or more heirs. ◦ To be a substitute you have to accept the inheritance. ◦ The substitute is subject to the burdens and conditions imposed on the appointed (art. 780 CC): The substitute shall be subject to the same charges and conditions imposed upon the instituted heir, unless and testator has expressly provided the contrary, or the charges or conditions are merely personal with respect to the heir instituted. ◦ To a first called can be named two or more substitutes together or successively. ◦ Heirs instituted without designation of shares shall inherit in equal proportions (art. 765 CC, except different disposition of the testator.) ◦ If they are successively one will only inherit in the absence of another ◦ Likewise you can name the same substitute for several people who were first called in the inheritance. ◦ In this case if one of the calls does not inherit, the substitute occupies its part (part of the doctrine considers that the substitution will only mediate if there is no right to accretion or increase the quota in favor of the other first calls). ◦ A first called may be a substitute for another first called (it is assumed that they have been designated unequal parts). ◦ If heirs instituted in unequal portions should be substituted for each other, they shall have the same portions in the substitution as in the institution, unless it clearly appears that the will of the testator was otherwise (art. 779 CC). C) Legal nature: ◦ In principle the substitute has a conditional calling, although: ◦ If the first called cannot inherit (ex: has predeceased), there really is no condition when the inheritance is opened, from the very opening of the will the call is made to the substitute ◦ If the first called does not want to inherit, the calling will be conditional (under the condition that he waives). LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 12 D) Relationship between vulgar substitution, transmission of ius delationis and right to accretion: ◦ If the first called has died without exercising the ius delationis, the art. 1006 CC is applied and his heirs can accept the inheritance not being considered a substitute. ◦ Art. 1006 CC: Should the heir die without having accepted or repudiated the inheritance, the same right he had is transmitted to his heirs. ◦ The doctrine discusses whether the right to accretion is preferable to substitution: ◦ In favor: art. 986 CC and part of the doctrine. Art. 986: In testamentary successions, when accretion does not take place, the vacant portion of the instituted heir, if no substitute has been appointed, shall pass to the legal heirs of the testator, who shall receive it with the same charges and obligations. ◦ Against: art. 912.3 CC is interpreted by part of the doctrine (DIEZ-PICAZO) in the sense of giving preference to substitution over the right of accretion. Art. 912.3 CC: Legal succession takes place: If the heir has been instituted conditionally and the condition does not happen, or if the heir dies before the testator, or repudiates the inheritance, no substitute having been appointed for him and there being no right of accretion. E) Vulgar substitution, strict forced share and betterment: ◦ Strict forced share (legítima estricta): It cannot be encumbered with substitutions (Article 813 Cc: The testator cannot deprive his heir of their legitime, except in the cases expressly determined by law. Should he do so, the same shall be considered as not imposed). Now, supposing that a substitution were established, this would be preferable to the opening of the intestate succession, if the legitimary did not succeed. ◦ Betterment third (mejora): It is possible to name a substitute if he is a descendant of the testator 10.2.2. The fiduciary substitution or possessory trust (“Sustituciones fideicmosiarias”) 10.2.2.1. Concept, characteristics, subjects and formal elements LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 15 Anyway this possessory trust if governed by the following rules: - the fruits obtained are for the fiduciary (the treasure is not) - He is entitled to compensation for improvements (except those of mere ornament) - He has the right to be reimbursed for the extraordinary costs of conserving the goods - If the fiduciary has paid from his own property the debts and credits of the inheritance has right of withdrawal (art. 783 Cc). - He cannot dispose of the property for consideration because he has to preserve them. Exception: In case of necessity the following doctrine is applied: IF THE BENEFICIARY IS IDENTIFIED, HIS CONSENT IS REQUIRED FOR SALE, ONLY OTHERWISE THE JUDGE COULD AUTHORIZE IT. Leases made by the fiduciary (trustee) of the inherited estate: Lease submitted to the CC: It could be applied the Art. 1520 CC to the beneficiary à (If the vendor redeems the thing sold shall receive it free of any charges or mortgage imposed by the vendee, but he shall be obliged to respect any lease made by the latter in good faith and in accordance with the customs of the place where it is situated). Must the transferor respect the contract? 10.2.2.5. Legal position of the beneficiary (fideicomisario): A) Beneficiary at term: If the beneficiary is at term, he shall acquire a right to the succession from the time of the testator's death (at that moment of the inheritance delation) (article 784 CC) even though he should die before the fiduciary. The right of the second heir shall pass to his heirs. ◦ In the interim until he receives the goods he can: - Require the fiduciary to carry out an inventory of property - Has action against the fiduciary who has failed to fulfil or defectively fulfilled the obligation to keep the goods. ◦ In any case, he can accept the inheritance for the benefit of inventory. LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 16 B) Beneficiary under condition: If the fiduciary is under condition only acquires the rights to the inheritance since the condition is fulfilled, date on which the “delación” or call of the inheritance occurs (until that moment it will not be known who is the beneficiary) ◦ Previously he has an expectation of protectable right ex art. 1121 CC, but if he dies nothing will transmit to his heirs. Art. 1121 CC: The creditor, before the fulfillment of the condition, may maintain any actions which may be proper for the preservation of his right. 10.2.2.6. Extinction of the fiduciary substitution. Extinction cases: ◦ When the time comes and the property has to be given to the beneficiary ◦ If the beneficiary does not want or cannot inherit (in such case the encumbrance is removed and the fiduciary becomes full owner of the property) ◦ If the fiduciary does not want or cannot inherit, or if the inheritance is accepted, and he renounces his fiduciary legal position: ◦ If the substitution is at term, the substitute is considered as a vulgar substitute and the intestate succession is not open ◦ If the substitution is conditional, the intestate succession opens. 10.2.2.7. The special case of non-simultaneous usufruct in favour of several persons with the power to dispose: ◦ Admitted by arts. 787, 467 and 470 Cc. Figure next to the substitutions, in which one call will have the bare ownership and another the usufruct. Will be available as ordered in a will. In this case the order of substitutes will be as indicated by art. 781 CC ◦ Art. 787 CC: Any disposition by which the testator leaves the whole or any part of the inheritance to one person and the usufruct to another shall be valid. If several persons are designated to enjoy the usufruct, not simultaneously, successively, the provisions of article 781 shall govern. ◦ Art. 467 CC: Usufruct gives a right to enjoy another's property under the obligation of preserving its from and substance, unless the title creating it or the law provide otherwise. ◦ Art. 470 CC: The rights and obligations of the usufructuary shall be those specified in the title creating the usufruct…. LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 17 10.2.2.8. Conditional fiduciary substitutions: A) The substitutions si sine liberis decesserit: ◦ It is the case in which the testator calls his inheritance to one person and successively to another for the assumption that the first one dies without children ◦ If the fiduciary dies with children, it is understood that he will acquire full ownership of the property of which he may dispose as he wishes and in favour of whomever he wishes. ◦ If the beneficiary predeceases to the fiduciary, it is released. B) The so-called fiduciary of the remaining part of the estate (fidecomiso de residuo): ◦ It is allowed by the last subsection of art. 783.2 CC. This article states that in order for appointments to fidei-commissary substitutions to be valid they must be made expressly. In addition, it says that the fiduciary is bound to deliver the inheritance to the fide-commisarius (beneficiary) without any other deductions than those resulting from legitimate expenses, credits, or improvements, except in case the testator has otherwise provided. ◦ Therefore, the testator authorizes the first appointed to dispose the assets of the estate, with limitations and for the cases that would be determined, and with the obligation that the rest that remained at the time of in which the estate must be transferred to the beneficiary (usually the moment of the death of the fiduciary) will be deliver to him (to the beneficiary). ◦ The testator will determine the scope of this trust: He can set it for if there is something left = There is not duty to keep anything to be transferred the beneficiary (then it would be conditional) He can set it with regard to what should left: With which it is obligatory that something remains to be transferred to the beneficiary ◦ In any case T¡the consideration (eg. price) received by the fiduciary when disposing of assets is not considered to subrogate the property from the estate (unless otherwise stated by the testator) ◦ The called to the residue enjoys all the actions tending to the protection of their rights. LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 20 ◦ In the “sustitución ejemplar”, if the incapacitated person should make a will during a lucid interval or after having recovered his sound mind (art. 776.2 CC) 10.3. The legacy. 10.3.1. Concept and characteristics: A) Concept: The legacy consists of a disposition of last will in virtue of which the disposer orders the creation or modification or extinction of a legal relationship (DIEZ-PICAZO/GULLÓN), by which the legatee, as a general rule, succeed in a private title, not a universal one to the deceased. B) Characteristics: 1.- Is it possible a legacy over a thing belonging to another? The typical legacy, is the one over the disposer's own thing, however the legacy of another thing is also allowed: ◦ The legacy may attribute at the time of the death of the deceased a property to the legatee (legacy of the testator's own thing), but equally it may be to require the heir to deliver to the legatee a thing belonging to another, (therefore, at first the legatee he is only a creditor of that benefit to which the heir is obliged) 2.- What is the nature of the legacy? Is it essentially gratuitous?: The legacy is not assimilated to the donation as it may not have the nature of free disposal. ◦ In fact, the CC allows to impose on the legacy (legado) an encumbrance equal to the value of the legacy (Therefore, according to article 619 Cc, it would not be a donation): ◦ Art. 858 CC: A testator may charge with legacies and bequests not only his heirs but also the legatees. The latter shall be liable for the charge only to the extent of the value of the legacy. ◦ 3.- If possible a legacy over a part of the estate? ◦ While the art. 660 Cc says that legatee is the one that succeed in a private title, the legatee may not always be a successor in a private title. Take into account the great heterogeneity that the specific regulation of legacies presents. LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 21 ◦ 4.- The legacy can fall on the third betterment(“mejora”), provided that is done in favor of descendant. ◦ . 10.3.2. Personal elements of the legacy: ◦ Testator or disposer: The legacy must be ordered in a will, so that anyone who has the capacity to make a will can dispose mortis causa by legate. ◦ The legatee. ◦ The legatee may be the heir himself or a different person. ◦ When the testator charges one of the heirs with a legacy or devise, he alone shall be bound. Should he not charge anyone in particular, all shall be liable in the same proportion in which they may inherit (art. 859 Cc). ◦ There are two different possibilities of special legatees: ◦ PRELEGATEE (in case of “prelegado”): If the legacy is made to the heir himself, it is called "prelegacy". ◦ In this case the heir is both legatee and can accept the inheritance and waive the legacy and vice versa: Art. 890 CC: Any heir who is at the same time a legatee may repudiate the inheritance and accept the legacy, or repudiate the latter and accept the former. ◦ SUBLEGATEE (in case of “sublegado”): Art. 858 CC: A testator may charge with legacies and encumbrances not only his heirs but also the legatees Þ that is, the legatee himself can be encumbered with a legatee, we call this circumstance: "sublegacy” ◦ In such a case, the legatees shall be liable for the charge only to the extent of the value of the legacy or the devise received by them. This means that the testator can impose on the legatee a charge equivalent to the value of the legacy. ◦ In case the encumbrance exceeds the value of the legacy, the legatee may request the reduction of the excess. ◦ The sublegacy is not a modal legacy (Article 797 CC). In the case of the modal burden (can be a real or personal burden) LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 22 the beneficiary has no right to demand the benefit, in the case of the legacy yes. ◦ Art. 797 CC: The statement of the object of the institution, or of the legacy, or the application to be given to the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed immediately and is transmissible to the heirs if they give guarantee for compliance with the directions of the testator and for the repayment of anything they may receive together with its fruits and interest, should they fail to fulfill this obligation. 10.3.3. Object of the legacy The object of the legacy meets the following characteristics: ◦ It must be of something allowed to commerce with: A legacy of things which are not subject to commerce is void (article 865 CC). ◦ It may be a material or immaterial thing: Material things can be bequeathed, credit rights (article 870 Cc), benefits in favor of the legatee (eg, the payment of periodic pension, article 880 Cc) ◦ The legacy can be a thing belonging to another (the heir is required to acquire a thing belonging to another to be delivered to the legatee (article 861 Cc). ◦ Art. 861 CC: The legacy of a thing belonging to another, when the testator knew at the time of bequeathing it that it was not his, is valid. ◦ The heir shall be obliged to acquire it for delivery to the legatee; and should it not be possible for him to do so, to pay the latter its just value. The burden of proving that the testator knew that the thing did not belong to him rests upon the legatee. ◦ If the legacy consists of a undertaking (“prestación”), it must be lawful, possible and determined (arts.1271,1272, 1273 CC). ◦ Art. 1271 CC: All things, even future ones, which are not excluded from the commerce of man, may be the subject-matter of contracts… All services not contrary to law or to good morals may also be the subject-matter of contract. LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 25 ◦ The necessary expenses for the delivery of the thing bequeathed shall be for the account of the estate, but without prejudice to the legitime. 10.3.4. The liability of the legatee General rule: The legatee is not liable for the debts of the inheritance, but the testator can impose the payment of some debts as burden or condition (art. 797 CC) Special liability rules : ◦ A) Distribution of the inheritance in legacies: ◦ In such a case the intestate heirs would be called, but it is very difficult that they accept an inheritance only to pay debts, for this reason the legislator anticipated the rule of article 891 CC completely detrimental to creditors: ◦ Art. 891 CC: If the entire estate is distributed in legacies, the debts and liabilities of the same shall be charged to the legatees pro rata, in proportion to their shares, unless the testator should have provided otherwise. ◦ Then there will be an automatic division of debts. Each legatee is liable on his part and his liability is limited to the value of the legacy (art. 858.2 Cc). ◦ B) The rules of the arts. 1027 and 1029 Cc (within the regulation of the inheritance accepted benefit of inventory): ◦ General rule: The heir must pay first to creditors and later the legatees (art. 1027 CC) ◦ However, the article 1029 CC states that if after paid the legacies may appear other creditors, these only may claim against the legatees in the case of not being in the estate sufficient property to pay them. 10.3.5. Termination and revocation of the legacy A) Termination of the legacy ◦ Causes of general inefficiency: invalidity of the will, indignity of the legatee, legacy of thing outside that is not object of commerce… LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 26 ◦ Cause by the will of the testator: revocation of the legacy. B) The revocation of the legacy ◦ Cases of tacit revocation of the legacy: ◦ 1.- If the testator makes such alterations in the thing object of the legacy that it does not retain either form or the denomination it had before (art. 869.1 Cc). (“no conserva ni la forma ni la denominación que tenía”) ◦ 2.- If the testator alienates the thing object of the legacy or any part thereof under any title or for any cause; provided that in this case the legacy shall become inoperative only with respect to the part so alienated. If after the alienation the thing should revert to the ownership of the testator, even if it be by reason of the nullity of the contract, the bequest (legacy) shall not thereafter be valid, unless the reacquisition shall have taken place by reason of the exercise of an option of repurchase retained by the testator (art. 869.2 Cc). ◦ 3.- If the thing bequeathed is wholly lost, or perishes during the lifetime of the testator, or, without the fault of the heir, after his death. Nevertheless, the person obliged to pay the legacy shall be liable for eviction, as provided by Article 860 CC, if the thing bequeathed should not have been determined in kind. (art. 869.3CC). ◦ The legacy of credit against a third party or the one that consist in the forgiveness of a debt of the legatee shall lapse (“caducará”) if the testator, after having made it, should sue the debtor for the payment of his debt, even if such payment should not have been made at the time of his death. (art. 871 CC). ◦ Ineffectiveness of the legacy: ◦ The legacy can become inofficious for damaging the forced shares (in what exceeds the freely available part). In such case, it will be reduced as inofficious in such excess (arts. 819-882 Cc). ◦ The legacy can fall on the third betterment, provided that is done in favor of descendant. Effects of the ineffectiveness of the legacy: LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 27 ◦ If the legacy has been imposed to all the heirs must be applied the rule of art. 888 CC: ◦ If the bequest for any reason should be inoperative, it shall be merged into the estate, except in cases of substitution and those in which the right of accretion exists. Warning: The return in the inheritance will only proceed when the legacy it was over an ownership of the testator, not if it was over a property of a third party. ◦ The legacy has been imposed to one or some of the heirs: ◦ In this case such heir or heirs are released to deliver it. 10.3.6. Guarantees of the legatee and preference among legacies A) Guarantees of the legatee: ◦ The main guarantee that has the legatee is the possibility to preventively enter in the corresponding file of the Land Registry his legacy (thus prevents that property can pass to a third protected by the public registration faith = art.34 Mortgage Law (LH). ◦ However, in principle only, would be entitled entered it the legatee of a share of the estate (“parte alícuota”) (as art. 42.7 LH only allows to preemptively register the legacy to who can promote the process of division of inheritance, see 781 LEC). ◦ However, Land Registry legislation contains special guarantee norms relating to legacies: ◦ A.1 Legacy of the testator's own particular immovable thing: ◦ The legatee can obtain preventive file in the Land Registry his legacy on said concrete property at any time (article 47 LH). ◦ It also applies when the legacy of credit or pension is linked to an immovable property (art. 47 LH). A.2 Legacy of gender or amount (“género o especie”): ◦ The legatee can request the preventive file of its value on any registration of an immovable property of the inheritance enough to cover it, provided that it is not property specially legacies to others and without it being an obstacle that another legatee of gender or amount has already obtained preventive enter on the same good (art. 48 LH). LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 30 B) Legacy of thing belonging to another (“legado de cosa ajena”) ◦ The legacy of thing belonging to another it will be valid if the testator knew that it was it, otherwise it will be null (arts. 861 y 862 CC). But it shall be valid if the testator had acquire it after the execution of the will. ◦ Art. 861 CC: The legacy of a thing belonging to another, when the testator knew at the time of bequeathing it that it was not his, is valid. The heir shall be obliged to acquire it for delivery to the legatee; and should it not be possible for him to do so, to pay the latter its just value. The burden of proving that the testator knew that the thing did not belong to him rests upon the legatee. ◦ It is an assumption similar to that of the sale of a thing belonging to another (“venta de cosa ajena”), which produces merely obligational effects. Therefore, the art. 861 CC adds that the heir shall be obliged to acquire it to deliver it to the legatee and if not possible (only in such case) give this a fair estimate. ◦ If the burdened fail to fulfil the undertaking (purchase) he will be liable and indemnify for damages: A (art. 1101 Cc). C) Legacy of generic thing ◦ The legacy of generic thing produces obligational effects. The legatee does not acquire for the death of the testator, rather than the right to demand the delivery of a chosen thing of specified genre so the property can be acquired. ◦ Regulation: art. 875 CC: A legacy of generic personal property shall be valid even though there be no things of the same kind in the estate. A legacy of indeterminate real estate shall be valid only if there be such property in the estate. ◦ The right of election shall pertain to the heir, whose obligation shall be discharged by the delivery of a thing which is neither of the highest nor the lowest quality of its kind. ◦ However, the right of election may expressly be conferred to the legatee. ◦ Once the election is done, this is irrevocable. D) The legacy of an “habitation” right (art. 822 CC) ◦ The testator may bequeath or donate a “habitation” right to a force heir with disabilities, (not be counted in the forced share). LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 31 ◦ Also by of law the habitation right is attributed to the disabled forced share who need it and who is living with the deceased, unless the testator had provided otherwise. In any case, the habitation right is non-transferable. E) Quantity legacy (“Legado de cantidad”) ◦ The testator establishes the payment of an amount to the legatee: If the bequest should not be of a specific and determinate thing, but is generic or of quantity, its fruits and interest from the time of the death of the testator shall belong to the legatee if the testator has expressly so provided (art. 884 Cc). F) Legacy of encumbered thing (“cosa gravada”) ◦ Should the testator bequeath something which is pledged or mortgaged to secure a recoverable debt, the payment of the latter shall devolve upon the heir. ◦ If the legatee should pay such debt because the heir has not done so, the former shall be subrogated in the place and right of the creditor to recover it form the heir (art. 867.1 and 867.2 CC). ◦ Any other charge, perpetual or temporary, to which the thing bequeathed is subject, passes with it to the legatee; but in either case any payment or interest due at the time of the death of the testator shall be a charge upon his estate (art. 867.3 Cc). G) Alternative legacy (“legado alternativo”) ◦ It follows the rules of the alternative obligations: In alternative legacies the provisions of law governing obligations of the same kind shall be observed, subject to such modifications as arise from the express will of the testator (art. 874 CC). H) Credit legacy (“legado de crédito”) ◦ It is the case in which a credit that the testator is the owner against a third party is transmitted mortis causa to the legatee In this case the obligation of the heir shall be discharged by assigning to the legatee any right of action he may have against the debtor (Article 870.2 CC). I) Legacy of release or discharge of a debt ◦ In this case it is condoned a credit that the testator had against the legatee (art. 870 CC). ◦ Art. 870 CC: The legacy of the release or discharge of a debt of the legatee shall be valid only with respect to that part of the credit or debt existing at the time of the death of the testator. The obligation LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 32 of the heir shall be discharged by giving the legatee an acquittance (“carta de pago”) should he request one. ◦ In principle affects only the debts existing at the time of make the last will (not the latter), as article 872 CC states: “A generic legacy of discharge or release of debts includes those existing at the time of the execution of the will, but not subsequent ones”. J) Legacy in payment of debt ◦ A legacy made to a creditor shall not be charged against his credit, unless the testator shall have so expressly provided. In the latter case, the creditor shall be entitled to recover the excess of the credit or of the legacy (art. 873 Cc). K) Legacy of a periodical pension ◦ If a periodical pension, or a fixed annual, monthly, or weekly payment is bequeathed, the legatee may demand the first payment upon the death of the testator, and the following ones at the beginning of each period; such payment shall not be subject to reimbursement, even though the legatee should die before the expiration of the period begun (art. 880 CC) L) Legacy of support and education (instruction) ◦ These legacies are turned into the payment of a sum of money,. This payment can be claimed to the encumbered by the legatee (art. 879 CcC. ◦ LIFESPAN: ◦ Legacy for education: lasts until the legatee is of legal age (opinion of DIEZ-PICAZO/GULLÓN). However, in case of divorce the Supreme court normally extend the duty of parents to educate children to when the turn 25 in case they study at the University ◦ Legacy for support: lasts during the lifetime of the legatee, if the testator has not otherwise provided (art. 879 CC). 10.4. The execution of the last will. 10.4.1. The executorship (“albaceazgo”). Concept and legal nature ◦ A) Concept: The executor (“albacea”) is the person appointed by the testator with the specific mission of providing to the execution of the last will ◦ Not to be confused with the partitioner (“contador-partidor”) LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 35 his appointment was already known to him, or to the knowledge of the same: “it shall be deemed accepted by the person appointed thereto should he not excuse himself within the six days following that on which he shall have received notice of his appointment, or if he was already aware thereof, during the six days following that on which the death of the testator came to his knowledge (art. 898 Cc). ◦ If the executor doesn´t accept the position shall forfeit anything which the testator has left him, always excepting his right to a forced share (unless just cause happens). ◦ The executorship is a voluntary office (art. 898 Cc). E) The remuneration of the executor ◦ General rule: executorship is a gratuitous office (art. 908 Cc). ◦ But, “provided that executors shall in all cases be entitled to make a proper charge for any work done by them in the partition of the estate, or for any other professional services” (908 Cc). ◦ Therefore, he can only charge these works (discussed if necessary to be an expert on the subject to be able to charge) ◦ The executor cannot suffer damages as result of his performance. ◦ Compensation for damage that may have suffered without its fault or negligence will be in charge of heritage (art. 1729 CC by analogy), ◦ Art. 1729 CC: The principal must also indemnify the proxy for all damages he may incur in carrying out the representation without fault or imprudence on his part. F) The delegation of the executorship ◦ Article 909 CC prohibits the delegation without express authorization from the testator, regardless of the total of the partial: “An executor cannot delegate the office unless he has express authority therefor from the testator. ◦ However, he can use auxiliaries. G) Accountability (“Rendición de cuentas”): ◦ Art. 907.1 Cc: The executors shall submit an account of their administration to the heirs. ◦ Art. 907.2 Cc: Should they have been appointed, not in order to deliver the property to certain heirs, but to invest or distribute the same as directed by LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 36 the testator in the cases allowed by law, they shall submit their accounts to the judge. 10.4.3. Duration and extension of the executorship ◦ The testator enjoys broad autonomy to set the maximum period in which executor must comply with its mission (it follows from the art. 904 CC) ◦ If no set deadline: If the testator has not fixed a time therefor, the executor must complete his duties within one year from the date of his acceptance of the office or from the conclusion of any litigation which may have been commenced with respect to the validity or nullity of the will or any of its provisions (art. 904 Cc). ◦ Extended time allowed by art. 905.1 Cc: Should the testator desire to extend the legal term, he must expressly fix the time of the extension. Should he not have fixed it, it shall be understood that the term is extended for one year. ◦ Judicial extension: (art. 905.1 Cc): If at the expiration of this extension the execution of the will has not been accomplished, the judge may grant a further extension for such time as may be necessary in view of the circumstances of the case. ◦ Extension by agreement of heirs and legatees: The heirs and legatees may, by common consent, extend the term of the executorship for such time as they may deem necessary, but if the agreement is only that of a majority the extension cannot exceed one year (art. 906 Cc). 10.4.4. Termination of executorship ◦ Specific causes to terminate the executorship (art. 910 CC): ◦ Executor death. ◦ Incapacity. ◦ Waive (with or without just cause) ◦ Without just cause the executor loses that had left the testator (except forced share, art.900 Cc). So that he had acquired, the revocation of the property may occur retroactively. ◦ The waive must be on knowledge of the heirs. ◦ Removal of the executor (Cc does not collect specific causes) LESSON 10. CONTENT AND EXECUTION OF THE TESTAMENT 37 ◦ Lapse of the term fixed by the testator. ◦ Law. ◦ Persons interested, when proper. ◦ Fulfilment of the works assigned (case not collected by art. 910)