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International Estate Planning Guide - Individual Tax and Private Client Committee

Author:Ms Mónica Reyes Rodríguez and Juan C. Riveira Gómez
Profession:Reyes Abogados Asociados
 
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  1. WILLS AND DISABILITY PLANNING DOCUMENTS

  1. Will Formalities and Enforceability of Foreign Wills

    In Colombia, a will is a solemn act which must comply with the formal requirements established by civil law in order to be valid and binding. A will, like any other legal act, must fulfill the essential requirements for validity, that is, that the testator has legal capacity to make the will, that his or her consent is not impaired by vices such as error, duress or fraud, and that the act has a lawful purpose and cause. Depending on the type of will involved, the law has established additional specific formalities for validity.

    Under Colombian legislation, wills are classified as solemn or privileged. Solemn wills may be open or sealed and privileged wills are classified into oral, military and maritime wills. A solemn will must always be recorded in writing and executed before competent witnesses. At least two of the witnesses must be domiciled at the place where the will is granted, and must be able to read and write.

    In an open will, also known as a nuncupative or public will, the testator makes his or her dispositions public before three witnesses and a notary. The witnesses must copy the words of the testator verbatim and, at the end of the proceeding, read and sign the will. In a sealed will, on the other hand, the witnesses and notary are not required to have knowledge of the dispositions contained in it. However, the sealed deed must be presented before a notary and five witnesses, declaring viva voce that the deed contains the will.

    Privileged wills, on their part, may omit some of the formalities by reason of specific circumstances expressly determined by law.1 Nevertheless, a privileged will must meet three requirements: i) the viva voce statement of the testator regarding his or her desire to make a will, must be unequivocally declared; ii) the persons whose presence is necessary in the making of the will must be before the testator, and iii) the granting must be continuous, in that it may be only interrupted exceptionally for brief intervals, when required by reason of an accident. The validity of a privileged will is provisional and, therefore, once the exceptional situation is overcome, the requirements of a solemn will must be complied with.2

    As to the content of a will, the law provides that it must indicate the full name, place of birth, nationality, domicile and age of the testator, as well as the circumstance of being of sound mind and the names of the testator's spouse and children, together with the information of each of the witnesses and the notary, indicating the place, day, month and year of execution of the will. Errors in content do not nullify the will, provided there is no uncertainty regarding the identity of the testator, notary or witnesses.

    The allocations to be made must be determined or determinable, underlining the...

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