In legal translation, nothing is what it seems; even more so, when translating between languages of countries with very different legal systems. Many English legal concepts do not exist in Spanish law. Others have partial equivalents only. And other concepts are equivalent in general language but are not in a legal context. The job of the legal translator is to decide which translation strategy to apply in each case.
For example, ‘will’ in Spanish is testamento. In both the English and the Spanish systems, it is a document which contains instructions as to how to dispose of one’s assets after one’s death. They are equivalent in general language.
In a legal context though, English and Spanish wills are different. The requirements to make them are different, the types of wills allowed are different, the people who sign them are different… Even the contents and the language used is different!
In this article, I am sharing 8 differences between English and Spanish wills which fall into two categories: legal differences (related to the types of wills and how wills are made) and linguistic differences.
Bear in mind that
- ‘English’ refers to concepts, language, texts, etc. from England and Wales only, as opposed to other jurisdictions where they may exist or apply.
- ‘Spanish’ refers to concepts, language, texts, etc. from Spain’s derecho común (subject to the Civil Code) only, and does not include the local laws of specific regions.
Types of wills and formal requirements
1. Minimum age to make a will
English wills: the testator must be at least 18 years old (as per s7 Wills Act 1837) to make a will unless he is entitled to make a privileged will.
Spanish wills: those under 14 years of age cannot make a will (according to s663 of the Spanish Civil Code). Holographic wills, though (wills handwritten by the testator) can only be executed by persons over the age of 18.
2. Holographic (handwritten) wills
Holographic wills are allowed under both legal systems but there are some differences in the way they are executed.
English wills: holographic wills must meet the same formalities requirements than any other will, except privileged wills. Regarding signatures and witnesses, s9 Wills Act 1837 states that
(c) the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either—
(i) attests and signs the will; or
(ii)acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness).
Therefore, an English handwritten will includes the signature of the testator and two witnesses.
Spanish wills: contrary to the formalities required for other types of wills, holographic wills are not executed before a notario (Spanish notary public). S688 of the Spanish Civil Code establishes that, for a holographic will to be valid, it must be entirely written by the testator, be signed by the testator, and include the full date of execution. That said, a holographic will must be sent to a notario within five years of the date of death of the testator, so it can then be proved and be duly registered.
Therefore, a Spanish handwritten will only includes the signature of the testator.
3. Joint, mutual and mirror wills
First, let us look at what those three types of wills are.
A joint will is a single will which is executed by two or more persons. It operates as the separate will of each testator and may be revoked or varied by any of them without the other person’s consent.
Mutual wills are those where two or more testators agree on the way to dispose of their property and agree not to revoke the wills (there must be evidence of the said agreement not to revoke). No changes can be made without the other person’s consent and, on the death of the first person to die, the agreement becomes binding on the surviving testator. Mutual wills can be executed as separate wills or as joint wills.
Mirror wills are made in similar or identical terms (e.g. spouses leave everything to each other and then to their children) but, unlike mutual wills, they can be revoked at any time by any of the parties, either before or even after the death of their partner.
In England and Wales, joint wills, mutual wills and mirror wills are allowed.
S669 of the Spanish Civil Code establishes that two or more persons cannot make a joint will, nor can they execute the same will, be it to benefit each other, be it to benefit others. The Spanish Civil Code requires, therefore, each testator to execute a separate will with their own wishes, and joint wills, mutual wills or mirror wills are prohibited.
However, special or regional laws apply in certain Spanish regions (Galicia, Basque Country, Navarra, Aragon) allowing what are called in Spanish testamentos mancomunados.
4. Where are wills kept after execution?
The English law does not require wills to be kept in a specific place but allows testators to use different places and services. For example, testators can keep their will
- at home;
- with a solicitor;
- at a bank; and
- at the Principal Registry of the Family Division of the Hight Court, a District Registry or Probate Sub-Registry.
Spanish wills: the most common type of will is the one made and executed before a Spanish notario (called testamento abierto). The original will, which is signed by the testator, the notario and any witnesses, if applicable, must be kept at the notario’s office. The notario later notifies the existence of the will to the Registro de Últimas Voluntades (Register of Last Wills). The testator cannot keep the original will, but he can receive a simple or notarised copy of it.
Wills: contents, structure and language
5. Use of first/third person
English wills: they are written by the testator and, therefore, using the first-person singular.
E.g. I hereby revoke all former Wills and testamentary dispositions made by me […].)
Spanish wills: they are usually written by a notario, so those parts of the will referring to him are written using the first-person singular.
E.g. [The testator] declares his last will orally, and I put it in writing according to the following provisions:
E.g. I read aloud to the testator the present will in its entirety.
The rest of the will is written using the third-person singular, as it refers to the testator’s wishes.
E.g. […] makes the following gifts:
E.g. […] confirms he understands and agrees with the above-mentioned contents.
6. Clause numbering
English wills: clauses are numbered using ordinal numbers.
E.g. 1, 2, 3.
Spanish wills: clauses are numbered using ordinal numbers, usually written in capital letters.
E.g. FIRST, SECOND, THIRD.
7. General lack of punctuation
While both English and Spanish wills use overly long and complicated sentences, English wills tend to show even a greater lack of punctuation than Spanish wills. For example, a few months ago, I translated into Spanish an English will which included a 26-line long clause with no punctuation marks whatsoever.
8. Punctuation in subclauses
English wills: subclauses are introduced either by
- Roman numerals in small letters and inside round brackets
e.g. (i), (ii)
- a small letter inside round brackets.
e.g. (a), (b)
Spanish wills: Spanish does not allow using Roman numerals in lists, nor writing a letter (or a number) inside round brackets. Instead, subclauses and paragraphs are introduced either by
- a number followed by a closing round bracket
e.g. 1), 2)
- a small letter followed by a closing round bracket.
e.g. a), b)
Irene Corchado Resmella, a Spanish translator based in Edinburgh. English-Spanish sworn translator appointed by the Spanish Ministry of Foreign Affairs, Chartered Linguist and member of the CIOL. As a legal translator, I focus on Private Client law, specialising in Wills and Succession across three jurisdictions (England & Wales, Spain, and Scotland). Affiliate member of STEP. ICR Translations is registered with the ICO and has professional indemnity insurance.