A man dies widowed, with no descendants or ascendants, and leaves a will naming as his sole and universal heir whoever personally cared for him during the last years of his life. He appoints a friend as executor, granting him the power to determine who that person was.
The testator’s siblings question the validity of this clause and the power granted to the executor, arguing that it may violate Article 670 of the Spanish Civil Code, which states that a will is a strictly personal act and cannot be left, in whole or in part, to the discretion of a third party.
Article 670 CC:
“A will is a strictly personal act: its formation may not be left, in whole or in part, to the discretion of a third party, nor may it be executed through an attorney or representative. Nor may the subsistence of the appointment of heirs or legatees, nor the designation of the portions in which they shall inherit when they are instituted by name, be left to the discretion of a third party.”
Answer:
This principle is not violated, and the designation of an heir in the manner established by the testator is valid. The testator’s will is the supreme law in succession matters, provided that forced heirship rules (legítimas) are not infringed—something that does not occur in this case, as confirmed by Articles 750 and 772 of the Spanish Civil Code.
The executor’s role is legitimate because:
- The executor does not appoint or choose the heir.
- The testator has already determined the heir by establishing a clear and objective criterion:
the person who personally cared for him during his final years. - The executor merely identifies who meets that factual condition.
This type of clause is expressly permitted under Spanish law:
- Article 750 CC allows the testator to entrust a third party with the task of designating a person based on objective criteria already defined by the testator.
- Article 772 CC reinforces the validity of delegating certain factual determinations to a third party, provided that the essence of the testamentary disposition comes from the testator.
Therefore:
- The heir is designated by the will, not by the executor.
- The executor’s function is one of verification, not discretion.
- The clause is valid, enforceable, and fully consistent with Spanish succession law and jurisprudence.
