DISCAPACIDAD SENSORIAL Y TESTAMENTO ABIERTO NOTARIAL: EL TESTAMENTO DE PERSONA CIEGA COMO TESTAMENTO ORDINARIO DOTADO DE MAYORES GARANTÍAS. SU CONCILIACIÓN CON EL PRINCIPIO DE PRESUNCIÓN DE CAPACIDAD Y EL DE FAVOR TESTAMENTI.

Abstract

The original wording of the Civil Code on matters of oral wills delivered to a notary stated that, where the testator is blind, the will-making act has to be attended by three competent witnesses, and moreover one of these attesting witnesses or another person must sign for the testator at his request, and additionally the will must be read out twice by the notary and by witnesses or by a person designated by the testator. The general law reform enacted in Act 30/1991 of 20 December paid special attention to the «widespread desire to make a greater degree of discretion and reserve possible for so private an act» and did so by eliminating the general attendance of witnes ses, save where the testator «although he can sign it, is blind or declares that he does not know how to or cannot read the will for himself». In Catalan regional law the requirements set, including the attendance of up to seven witnesses by application of Roman law, earned the reproach of doctrine. The issue was definitively settled by Act 10/2008 of 10 July on the Fourth Book of the Civil Code of Catalonia, for a «will executed by a person with sensory disability», which says, «The Notary must follow the terms set by notarial legislation for these cases». In view of this panorama, this article will recapitulate the legislation applicable when the testator is visually disabled and will review the pertinent case law, which attempts to reconcile the requirements of form with the rule of presumption of the testator's capacity and the rule of favor testamenti.