According to the Portuguese Civil Code (Article 2 179) a Will is the "unilateral and revocable act by which a person disposes, after death, of all his property or part thereof". It is also a personal act, that is, it cannot be done through a representative or be dependent on the Will of another (article 2182). A Will can be made by any person of legal age, or a minor who is emancipated, who is not prevented by a psychological anomaly. It is possible to prepare the document at any notary public or by a lawyer in Portugal. If you live abroad, it can be done in the Portuguese consulates of the foreign country.
1. Process and Rules
To prepare Wills in Portugal you must go to a notary's office or a lawyer's office, accompanied by two witnesses. It is necessary to present the valid ID of the testator and of the witnesses. This can be a Citizen's card, identity card or equivalent document, issued by the competent authority of one of the countries of the European Union; Driving licence, if issued by the competent authority of one of the countries of the European Union or your Passport. Medical experts may also intervene in the procedure to ensure the mental health of the testator, at the request of the testator or the notary, if there is any doubts as to this. Anyone can write a Will and there is no rigid model for doing so. There are two most common types, according to the Civil Code (Article 2204 et seq.):
- Public Will - document written by the notary in his notebook
- Closed Testament – a handwritten document signed by the testator, or by another person at his request. It can also be handwritten by another person at the request of the testator and signed by him/her
Please note that the testator may not sign the closed Testament if he does not know how to make a signature or cannot do so. The document must then be submitted for the approval of a notary. The Will can also be international if it is written by the testator or a third party in any language. The rules are laid down in the Uniform Law on the Form of an International Will.
2. Wills in Portugal: The importance of preciseness
When drafting a Will, special attention must be paid to its wording, since any imprecision or ambiguity may lead to conflicts between heirs in the future. Take the following real example: A client's aunt left her niece ‘all my property’ in her Will. The testator had a single fully furnished property and a bank account. According to the Portuguese classification of property, the bank account was NOT therefore included in the bequest to her niece, and was to be divided between a number of beneficiaries. However, due to the wording used in the Will, it was also uncertain whether a number of important items of furniture in the property were also part of the exclusive bequest to the nieve - since moveable property was not considered as coming within 'property' as used in the Will. All these conflicts would have been avoided if the testator had identified the actual assets by name instead of using broad descriptive terms such as 'property'.
3. Applicable Laws
Wills in Portugal, once created, are subsequently be registered with the Notary Public. Thus, the family members, upon the death of the testator may request a certificate from the Institute of Registration and Notarial Services identifying the existence, or not of a Will and the place where it is deposited. If you are a foreigner, living in Portugal, the rules for the application of the laws determine that the law applicable to the succession is the law of your nationality. Thus, if you are a foreigner, you can make a Will in accordance with the rules of your country of nationality, thus avoiding several conflicts of legal application of the successive rules. If the law applicable to the Will is Portuguese, the testator will not be able to dispose of all his or her property through a Will whenever there are legitimate heirs. The law provides that two thirds of the deceased’s property is destined to their legal heirs - the spouse, the descendants and the ascendants, in accordance with the order of legitimate succession. These heirs are guaranteed by law a share of the estate, the so-called unavailable or legitimate share, which corresponds to the portion of the inheritance that escapes the Will of its holder.
