A joint last will and testament enables two (or more) persons to combine the wishes of each as regards their heirs in one single testamentary document. Within the Spanish state, this is a legal concept only in those Autonomous Communities where Civil Law has adopted it based on traditional practice in the region, such as exists in Basque Civil Law with its traditional legal rights (fueros). Jurist Ms Maite Barruetabeña has made a study of how a joint will is applied in the Autonomous Community of the Basque Country (CAV-EAE), as well as differences depending on the traditional legal rights (there are three different fueros) held in each municipal local authority. Moreover, she compared these practices with those of other Autonomous Communities. Her thesis, defended at the University of the Basque Country (UPV/EHU), is entitled Joint testament or of association in Basque Civil Law.
It is precisely the comparison with other Autonomous Communities that made this researcher come to the conclusion that the Basque legislation is anachronistic in this respect. In the thesis, Ms Barruetabeña proposed solutions to resolve these anachronisms and to appropriately regulate the practice of a joint last will and testament. It is a practice she considers essential to preserve given that, as she explains, those Spanish Communities that do not legislate on it (and so by default are ruled by common State law, only allowing individually-written testaments) find themselves with a situation where, although there may be a demand for joint wills, they cannot issue them.
Territorial restrictions
As she explained in her thesis, due to the anachronistic nature of this legislation, Basque Civil Law represents the most restrictive regulation in this matter. One of the most remarkable aspects is that the laws are different depending on the local municipality and the fueros the town is linked to. This gives rise to some curious cases, such as that of the town councils of Laudio and Aramaio in the Basque province of Araba/Álava and which are governed by the legislation of the neighbouring Basque province of Bizkaia, or those municipal authorities in the CAV-EAE that cannot draw up a joint will, because they do not come under any of the three traditional fueros (Gipuzkoa, Bizkaia and Aiala). As Ms Barruetabeña explained, this can be an important problem when, for example, the two members of the couple are not domiciled in the same neighbourhood, underlining the need to unify criteria.
One of the changes that other Communities have incorporated with respect to the legislation on joint wills involves getting away from the exigency of a matrimonial union between the persons drawing it up. There are even Autonomous Communities in which the testament can be signed by more than two persons. The Basque laws, on the other hand, coincide in limiting the use of joint wills exclusively to married couples or common law couples (the latter being one of the few modernisations that have been carried out). The thesis defends the possibility of joint execution of the document for any individual, as has occurred in other Autonomous Communities, without the requirement of having to be cohabiting relations or having kinship. The researcher believes, on the other hand, that, for practical reasons, it would be desirable to continue limiting to two the number of persons who can jointly draw up a will.
The thesis also makes reference to restrictions that exist with respect to formal requirements. Once more, there is a lack of unification and flexibility, given that each foral territory clings on to just one form of the testament. Following the example of other Autonomous Communities, Ms Barruetabeña proposes undertaking reforms that extend the formal possibilities in which it can be used, in such a way that the public can benefit from the advantages of joint wills in various contexts.
Co-respectivity vs. revocability
The researcher highlights the incompatibilities of joint wills with the principle of revocability. The fact that the texts are drawn up jointly complicates the possibility of unilaterally revoking them, and this is precisely the main criticism that this practice receives.
To resolve this problem, Ms Barruetabeña believes it necessary to define exactly the meaning of co-respectivity, which is widely used in legal texts but lacks a precise official definition. Co-respectivity is related to the fact that signatories to the testament have to adopt decisions taking also into account the ones adopted by the other at the time of signing, thus limiting revocability. The researcher sees this as an aspect to be regulated with special attention. In this case, she argues in favour of the Basque Civil Law adopted by the legislation of the Basque province of Gipuzkoa: it is the only one that considers the co-respectivity of those clauses wished to be revoked (that of Bizkaia limits itself to taking the decisions to revoke into account in the case of common possessions being affected or not), apart from the possibility of one of the signatories having deceased before the time of revocation.
About the author
Ms Maite Barruetabeña Zenekorta (Getaria, 1980) has a Diploma in Labour Relations and a Law degree. She drew up her thesis under the direction of Jacinto Gil Rodríguez, professor of Civil Law at the Law Faculty of the UPV/EHU in Donostia-San Sebastián, the campus where the author undertook the research for her PhD thesis.