The new will for persons with sensory disability: exercise of legal capacity and technological progress in the will spanish and catalan law

Abstract

The approval of Law 8/2021, of June 2, reforming civil and procedural legislation to support persons with disabilities in the exercise of their legal capacity, has brought about a change of such magnitude, particularly in the area of capacity and in certain inheritance institutions, that doctrine, jurisprudence, the non-litigious proceedings, the notarial world and legal operators in general, must adapt to this intense institutional renewal. With this regulation, we are entering into a "system based on respect for the will and preferences of the person with disabilities", taking into account that the protagonist subject is that of the Fourth Additional Provision of Spanish Civil Code. Therefore, and in contrast to the original wording on open will and even its reform Law 30/1991, of December 20, which addressed the "widespread desire to make possible a greater degree of discretion and reserve for such an intimate act", the truth is that it finally dispenses with the old and legal requirements claimed for people with sensory disabilities. In particular, it is the case of visually, both in open and closed wills, since it opens the latter possibility of establishing last wills, whether by mechanical or technological means. It should be noted that these methods had been the object of very strong criticism, objections and reproaches in the renewed Catalan Foral Law 6/2019, of October 23, amending the fourth book of the Civil Code, relating to inheritance, to ensure equal rights and non-discrimination of persons with sensory disabilities. In the literal wording of this reform where the "will granted by a person with sensory disability" eliminates the previous restrictions to order their last wills, taking into account the technological advances endowed with full legal reliability and security. This is the case of articles 421.8 and 421.14 which provide not only for his presence as a witness but, in particular, for the drafting of open and closed wills, including writing in Braille. These work ratify how the legislator stops the testamentary discrimination of visually impaired persons and adapts to the United Nations Convention on the Rights of Persons with Disabilities, the Charter of Fundamental Rights of the European Union, among other norms. And, undoubtedly, it surrenders to the evidence and reliability of technological progress.