Formalities of Making a Last Will & Testament in Panama
There are many idiosyncracies about Last Wills & Testaments in Panama. As a foreigner, some of these may seem absurd to you. For example, it is not possible in Panama to prepare a joint will. Each spouse should prepare an individual will. Furthermore, living wills (as you might have in the United States) are unknown.
Last Wills and Testaments in Panama are regulated by the Civil Code. The Code was adopted in 1917, but has had various modifications over time (including having the entire section regarding Family Law repealed, when the Family Code was adopted in 1994).
One of the most important factors to keep in mind about Last Wills & Testaments in Panamanian law is that they are very formal and therefore subject to many requirements which do not apply to other acts under civil law. Article 702 of the Civil Code therefore provides the following:
702. El testamento es un acto personaliísimo; no podrá dejarse su formación en todo ni en parte, al arbitrio de un tercero ni hacerse por medio de mandatario.
Tampoco podrá dejarse al arbitrio de un tercero la subsistencia del nombramiento de herederos o legatario, ni la designación de las porciones en que hayan de suceder cuando sean intituidos nominalmente.
What this basically states, then is that the Will is a personal right, which may only be exercised personally and not through third parties. You may not issue a power of attorney to another person to prepare the will on your behalf nor leave the distribution of the estate to the discretion of another person, where you have established specific heirs.
Under the Family Code, it is, for example, possible to issue a Special Power of Attorney to another person to sign the marriage license and documentation in your name. Therefore, that person may contract marriage on your behalf with a specified person in your absence. This is not the case for a last will and testament.
The Civil Code recognises a number of different types of Wills. We have provided information regarding these separately. See: Types of Last Wills and Testaments.
The formalities which we are most concerned with are those of the Open Common Will, which is executed before a Notary Public, with appropriate witnesses and protocolised into a Public Deed. As most clients are not fluent in Spanish, we are providing also the formalities which should be followed regarding the translation of the Will and the execution in both English and Spanish.
Article 716 establishes the requirements for making the will in another language:
Artículo 716. Para testra en lengua extranjera se requiere la presencia de dos intérpretes, elegidos por el testaor, que traduzcan su disposición al castellano. El testamento se deberá escribir en la dos lenguas.
The translation of this is basically: in order to make your testament in a foreign language, the presence of two interpreters (chosen by the testator) are required, to translate the provisions to Spanish. The Testament must be written in both languages.
If the Testator is not personally known to the Notary Public and the witnesses, then the Testator should be accompanied by two people that do personally know him and are known to the Notary Public and the witnesses, and these people should declare that they know the Testator.
Basically - you will end up with the following people in the room when the will is prepared and read aloud:
Generally, what will happen is the following (reality versus the way the Civil Code explains the formalities and proceedings):
It should be noted that the reading aloud and signing process is very formal. It should be a single act, uninterrupted. So, all mobile phones should be off and it should be finished in a single sitting.
Last modified 08-May-2009 12:07 -0400
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Last modified 14-Apr-2011 10:06 -0400