A gentleman dies widowed, without descendants or ascendants, and leaves a will in which he appoints as his sole and universal heir the person who has personally cared for him during the last years of his life. He designates a friend as executor, granting them the authority to determine who that person is.
The testator’s siblings question the validity of this clause and the powers granted to the executor, asking whether it violates Article 670 of the Spanish Civil Code, which establishes that a will is a highly 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 highly personal act: its formulation may not be left, in whole or in part, to the discretion of a third party, nor may it be done through a commissioner or agent. Nor may the continuation of the appointment of heirs or legatees, or the designation of the portions in which they are to succeed when nominally instituted, be left to the discretion of a third party.”
ANSWER:
We consider that this principle is not violated and that the designation of an heir in the manner established by the testator is valid, since the testator’s will is the supreme law in succession, provided that the compulsory portions (“legítimas”) are not infringed, which is not the case here according to Articles 750 and 772 CC.
The determination of this person by the executor is valid, as the executor does not appoint the heir, but merely identifies who cared for the testator, in accordance with the testator’s instructions.
