Wills and testamentos in Costa Rica
The name for a will in Spanish is testamento and Costa Rican laws give several
options for the person writing one: Open Testaments, Privileged Open
Testaments, and Closed Testaments, each of which will be explained briefly.
Here is how one is written and its benefits. To preface the definitions are
the things you may not do.
You may not make a Will giving your power of attorney to someone else
to write the will in your name or by the arbitration of a third party.
You may not include secret instructions or recommendations given to
a third party.
False motive invocations do not invalidate the Testament, unless the
motives are announced as conditions to the applicability of the Testament, or
that the testator him/herself intended that the legacy or inheritance depend
on the existence of the invoked clause. The expression of a motive against
the law will always nullify the disposition.
Substitutions are prohibited. The disposition in which a Third is called
to recollect the benefits of the said disposition if, for some reason, the first
named beneficiary will not or can not accept the legacy, does not constitute
substitution, and, in this case, the disposition is valid.
The Open Testament
An open testament is one that you make without secrecy: everyone may
know what your final decision is about your assets. The Open Testament is
written and signed by you in front of a Notary Public in the presence of at
least three witnesses: only two witnesses are required if the Testator writes
the Testament in his own hand (a holographic will). If no Notary Public
is present, four witnesses are necessary. Normally, you go to the Notary
Public and he makes a deed with your final dispositions for your death
and the distribution of assets you desire. If you want to make your will in
a language different from Spanish, then in addition to the Notary Public,
you will need the services of at least two translators chosen by yourself, who
will translate your final dispositions into Spanish and who will dictate it for
the Notary Public.
These are the basic requirements of an Open Testament
It has to be dated, indicating the place, hour, day, and month and year it
It has to be read aloud to the witnesses by the Testator or by the person
he designates or by the Notary Public. If the Testator is deaf. but can read,
the Testament is read for him; if he is unable to read, he has to designate
the person who will read it in his place.
The completed Open Testament has to be signed by the testator, the
Notary Public, and all the witnesses. If the Testator does not know how to
write his signature or is physically unable to sign, this information will be
stated in the Open Testament. You may also distribute future assets and
leave instructions for what to do with money, goods, and services that you
do not yet have.
The Privileged Open Testament
The privileged open testament is created for specific situations: all the formalities
are omitted because of the special circumstances and only certain people can
issue these Testaments. Those who may do so are: a soldier in the Army and
on campaign, or as a prisoner of war in the hands of the enemy, may write
a Privileged Open Testament before two witnesses and an officer; a sailor in
the Navy may do the same before two witnesses and the Captain of the ship.
The Privileged Open Testament is only valid if the subject dies in the special
circumstance that originated the dispensation of the normal requirements.
The Closed Testament
The closed testament stays secret until your death: nobody will know what is
in it and it is kept secure until you die. You complete it personally: it comes
from your own hand, or is at least signed by you.
You place it in an envelope and take it to a Notary Public. In the presence
of at least three witnesses the Notary Public writes a notation in his protocolo.
(The bound book given by the Costa Rican government to each Notary
Public in which are described all deeds and actions that they perform) making
reference to the envelope presented to him: how many pages it includes, if it
was written and signed by you, if the Testament includes overwriting, alteration
or notes, and noting for the Protocolo the hour and date the Testament was
received, including the names of the witnesses present at that moment. The
envelope is in turn; marked with the information from the Protocolo of the
Notary Public and it is kept safe until the time of death of the Testator. The
Closed Testament cannot be opened until the death of the Testator.
There are certain people who cannot issue a valid Testament i.e. children
under 15 years of age and the mentally ill.
There is ‘Relative Prohibition’ of receipt for the following persons named
in a Testament:
From a minor child to his tutor.
From a minor child to his teachers or caretakers.
From the ill person to his caretakers at the moment of his death
From the adulterous spouse to his lover if the adultery is judicially proven.
From the Testator to the Notary Public making the Testament.
The Testator can freely decide how to distribute his assets as long as he
provides financially for each of his minor children until they reach the age of
18, and for their natural life if physically or mentally handicapped or disabled.
If, at the moment of the Testators death, the children under age 18 and those
children who are disabled already have enough assets, this is not applicable.
* Courtesy of the ARCR and top 10 Costa Rica.