Contesting a Will in Puerto Rico - Grounds and Deadlines

Sometimes a will takes the family by surprise: it leaves out a child, favors someone who arrived near the end of the causante's life (the deceased person whose estate it is), or seems to have been written by someone who was no longer able to decide. To contest (impugnar) a will is to ask a court to declare it invalid, in whole or in part, or to correct what harms an heir.

Not every disagreement justifies a lawsuit. This guide helps you tell apart the grounds recognized by the Código Civil de Puerto Rico de 2020 (2020 Civil Code), which deadlines can be confirmed and what the process looks like.

First: which code applies

If the person died before November 28, 2020, the inheritance is governed by the 1930 Civil Code. If they died on that date or later, the 2020 Code applies, even if the will is older (Art. 1816). The grounds and the effects can differ, for example in the case of an omitted heir. See 2020 Civil Code vs. the 1930 Code.

Nullity for defects of form

A will is a formal act. A will is void if it "does not correspond to the types provided in this Code or in whose execution its respective requirements and formalities are not met" (Art. 1708). Some examples:

• a testamento ológrafo (handwritten will) that is not entirely handwritten, dated or signed by the testator (Art. 1650);
• a document typed on a computer and signed, without a notary, outside the special cases;
• a will made by two people in the same document (Art. 1640);
• a testamento abierto (will executed before a notary) in which a prohibited person served as a witness, such as someone who benefits under the will or a close relative of the heir (Art. 1642);
• a special will executed without the three witnesses the law requires (Art. 1655).

The Code also avoids voiding wills over technicalities. If the will does not state that a requirement was met, it is still valid when it can be shown that the requirement was in fact met. And a missing time of day does not void it if the testator did not execute another will that same day (Art. 1708).

Watch out for expiration. A handwritten will that was not submitted for court authentication (adveración) within 5 years of the death, or a special will not submitted in time, loses its effect (Arts. 1654, 1657). See types of wills.

The testator's lack of capacity

A will is voidable if the testator lacked capacity at the time of executing it (Art. 1709). Capacity requires being at least 14 years old (18 for a handwritten will) and having "sufficient discernment to understand the purpose, content and significance of the act" (Art. 1641).

What matters is the person's condition at the moment of making the will, not before or after. In a will executed before a notary, the notario (in Puerto Rico a notary is an attorney) must make sure the testator has capacity and state so in the will (Art. 1648). If the person had been declared incapacitated and made the will during a lucid interval, a psychologist or psychiatrist had to take part as a witness (Art. 1649). Contesting for incapacity usually requires medical records, testimony and, often, expert witnesses.

Flawed consent

A will, or a specific provision in it, is also voidable if there was flawed consent (vicio de la voluntad) (Art. 1709). Flawed consent means mistake, fraud (deception), violence and intimidation (Art. 285). The flaw has to have been decisive, and the burden of proof falls on whoever claims it (Art. 286).

A typical case: a relative or caregiver who isolates the testator and pressures or deceives them into changing their will. Besides annulment, anyone who, through fraud, intimidation, deceit or violence, induces or prevents the deceased from making, revoking or changing their will can be declared unworthy (indigno) to inherit (Art. 1556(e)). The action for unworthiness expires 4 years after the unworthy person takes possession of the property (Art. 1561). See disinheritance and unworthiness.

When the will cuts into the forced share

Often the problem is not that the will is invalid, but that it leaves a forced heir less than what the law reserves for them. The forced share (legítima) is half of the inheritance, reserved for the descendants and the spouse, or for the ascendants if there are neither descendants nor a spouse (Arts. 1622–1623).

In that case there is no need to void the will. The forced heir can:

• ask for the shortfall in their forced share (Art. 1630); and
• ask for reduction of the provisions that exceed the free portion, which are called excessive (inoficiosas). Only the forced heir can ask for this (Art. 1791). First the bequests and other provisions effective at death are reduced, proportionally; if that is not enough, lifetime gifts are reduced, starting with the most recent (Art. 1792).

To calculate the forced share, you take the inheritance valued at the time of the partición (division of the estate), subtract the debts and add the countable gifts the deceased made during their lifetime (Art. 1787). Gifts made 10 years or more before the death are not counted (Art. 1788). Whoever is subject to the reduction can avoid it by paying in cash (Art. 1793).

Omitted heirs (preterición)

Preterición happens when the testator fails to name one, several or all of their forced heirs, for example, when they do not mention a child (Art. 1628). Under the 2020 Code, preterición does not void the appointment of heirs; the forced share is divided among all the forced heirs (Art. 1629), and the omitted heir can ask for their share. Legal scholars have criticized the wording of the second paragraph of Art. 1628, so in cases involving grandchildren or representation it is wise to get advice.

A disinheritance without a stated reason, for a reason that is not proven, or for a reason not provided by law has the same effects as preterición (Art. 1634).

Deadlines that can be confirmed

For nullity and reduction, someone could argue that the general 4-year deadline for personal actions applies (Art. 1203). We found no case law resolving this under the 2020 Code. Do not wait: get advice soon.

The process in the Tribunal de Primera Instancia

1. Gather the will and the certificate. Request the ODIN certificate from ODIN (Office of Notarial Inspection, which keeps the wills registry) and a certified copy of the will, and of any earlier will.
2. Consult an attorney and gather the evidence: medical records, witnesses, documents, messages.
3. Complaint. The challenge is filed in the Tribunal de Primera Instancia (Court of First Instance), usually as an ordinary lawsuit against the affected heirs and legatees. Whoever seeks nullity must notify the notary who executed the will, who may intervene if they consider it appropriate (Art. 1710).
4. Discovery and possible settlement. Many disputes are resolved by agreement before trial.
5. Judgment. If the court declares the will void, the inheritance is divided under the rules for inheritance without a will, which apply when a will is ineffective (Art. 1719), or under another valid will, if there is one; the latter should be analyzed with an attorney. The judgment can be appealed.

If it is a handwritten will, the court authentication (adveración) does not decide whether it is valid. The court orders the will to be protocolized (incorporated into a notary's official record) even if someone objects, and the person who objects keeps their right to contest it in a separate lawsuit (Código de Enjuiciamiento Civil, the Code of Civil Procedure, Art. 551A, according to case KLAN202400163).

In the meantime, the estate information return (Planilla Informativa de Caudal Relicto) is due 12 months after the death. If family tension grows, see disputes among heirs.

CaudalRelicto.com is an independent guide. It is not Puerto Rico's Departamento de Hacienda, the courts or any government agency. This page is general information, not legal advice from an attorney who knows your case. Names and figures in examples are hypothetical. Found an error? Tell us.