When making a will, people are free to impose certain conditions on their heirs. Social rules are changing, so it is not surprising that a few decades ago it was common for husbands without children to leave everything to their wife or husband as long as they did not remarry. In reality, the law only excludes those requirements that are impossible, illegal or immoral. In any case, breaking the last will of the deceased can lead to a legal war for the inheritance.
This is the recent case of a man who will have to return to his brothers-in-law all the assets that, in his day, corresponded to him from his wife’s will for living more than 25 years with another woman, although they never got married. The deceased had written in 1975 that he would lose the status of heir if he contracted a new marriage.
Now, the Provincial Court (AP) of A Coruña has agreed with the sister of the deceased after several years of legal struggle. The judges oblige him to restore the inheritance to his ex-brothers-in-law, leaving him only the usufruct of the “personal quota” to which he is entitled by law.
The ruling (the text of which you can consult here) establishes that the man breached the condition imposed on him by his first wife (who died in 1996) when it was proven that he maintained a de facto union with another woman for years, which is equivalent to a marriage in practice. The magistrates even use police reports from the couple’s place of residence to confirm this circumstance. However, since the resolution is not final, it is possible that the man will appeal in cassation to the Supreme Court.
The Galician court understands that the judge who issued the first sentence erred in assessing the evidence presented. Specifically, by taking for certain some statements of the witnesses, provided by the man, who insisted that they only cared for each other as cousins. According to the magistrates, it is not credible that the family of the second woman, whom she also survived, recorded on her tombstone “memory of your husband” in relation to her first husband, who had died more than 30 years ago; nor that they include in the obituary the name of the defendant after “her husband”, because it was “cold” to call him cousin and they could not think of another formula.
The Court of A Coruña starts from the fact that the deceased had vetoed her husband from both the marriage and the coexistence “more uxorio” (that is, a stable relationship with a marital appearance) once he died. Therefore, the question centered on proving whether the man had a second de facto partner, thus breaching the will of his wife, as the deceased’s sister maintained.
According to Abel Marín, lawyer and partner of Marín & Mateo Abogados, although this type of testamentary prohibitions were frequent “in the mentality of the date the will was granted”, today they are “very unusual”. In this matter, the Provincial Court “considers that there is a fraud to the true will of the testator.”
In this sense, for the Galician court the circumstances of the case seem clear. According to the magistrates, the evidence in court confirmed that the man maintained for many years “a life in common” with his “cousin”, living in the same home from the end of the eighties “until her death”, in 2016 Specifically, this situation was accredited by witnesses and the certifications of the secretary of the town hall of the place where they resided, according to the reports that the local police made after the “appropriate inquiries”. “Both behaved socially as a couple,” they state in the resolution.
Furthermore, the family of the second couple gave the defendant publicly the status of “husband” when he died after a long illness. The woman was buried in a pantheon identified as “family property” and the names of both. On her tombstone, the phrase “memory of your husband, daughters and grandchildren” was placed. In the obituary of his death, the defendant appeared heading the relationship of relatives as “her husband.”
The witnesses presented by the man, all of them relatives and close friends, tried to justify these circumstances. While acknowledging that he spent long periods in the woman’s house, they affirmed that it was only due to the family affection that they had as cousins. However, the family bond was never demonstrated.
On the other hand, the magistrates note “obvious” contradictions in their testimony. Thus, while the daughter of the deceased assured that the inscription on the tombstone referred to her mother’s first husband, who had died more than 30 years ago, her sentimental partner got out of the way clarifying that the mention as husband in the obituary was something that it “occurred to him” because putting cousin “seemed very cold to him.”
Third parties in good faith
The magistrates come to the conclusion that the court made a mistake in assessing the evidence presented by the parties and, therefore, revokes its decision. Consequently, he agrees with the sister of the first deceased woman and declares “ineffective” the institution of heir that she carried out in favor of her husband. Consequently, they add, the deceased’s siblings become heirs, “without prejudice to the usufructual share that corresponds to him.”
As Abel Marín explains, “the loss of the condition of heir does not mean the loss of all hereditary rights”. Thus, for example, in the case seen by the Galician court, the defendant retains his legitimate widower. Said legitimate, clarifies the lawyer, can not be lost because the testator imposes “not to remarry.” Something similar happens, he adds, to what happens with the “caution socini” (clause by which the testator leaves the heirs with a value higher than their legitimate as long as they meet a requirement). “The condition should not be interpreted as a punishment but rather as an improvement if observed,” he says. That is to say, “I give you what corresponds to you by law (the legitimate one) but if you do not marry, I will leave all my assets”.
The court also condemns the defendant to return all the assets of the inheritance and declares void “the transmissions that may have made” of them. Likewise, the registry entries in your name must be canceled.
This provision can cause a legal problem when the goods were acquired by people who were unaware of these circumstances. According to Abel Marín, “they will retain, without a doubt, their rights.” It may happen, the lawyer predicts, “that part of the patrimonial provisions have been with the partner in law and their family.”