To decide to disinherit a child must be one of the most difficult decisions to make, even if it is justified. In fact, everybody is free to decide how to distribute his/her goods when writing a will, although there is a part (between 33% and 66% of the whole inheritance) which is to be left to each descendant in the concept of “legitimate”, according to the Spanish Law.
Of course, the Civil Code lists some specific cases in which it is possible to disinherit, such as: being convicted at trial for attempting to act against the life of the testator, denied maintenance, seriously mistreated or slandered the parent/ancestor who is currently performing the disinheritance and some others.
Besides, a new reason to justify the deprivation of inheritance has been included in the Supreme Court recent Rulings – the psychological abuse. The Supreme Court considers that parent´s emotional neglect from sons produces psychological abuse that can be included as abuse in terms of disinheritance in the Spanish Civil Code.
The lawsuit was based on the claim of a son, who had been disinherited in the inheritance of his mother, against his sister, who was instituted as universal heir in the will, urging the invalidity of disinheritance. The judgment of the second instance was different from the decision taken by the first instance, as the trial judge dismissed the claim, and the Provincial Court partially upheld it, taking into account the fact that the psychological abuse was not included in the Spanish Civil Code.
In addition to the proven instance concerning the existence of the facts of psychological abuse, the Sentence took into account the proven appeal over the same family, considered by the Chamber in 2011, that revoked some of the donations made by the deceased during her lifetime for the same son and his family, because of his fraudulent behavior and emotional conflict that the mother had suffered, all circumstances were considered by Chamber when making the final judgment in terms of disinheritance according to the consistent interpretation of the Spanish Civil Code.
The problem arises when it comes to demonstration of such a psychological abuse and differentiation between voluntary severance of family ties and psychological abuse through family abandonment. The Supreme Court leaves “a certain arbitrariness to assess the existence of psychological abuse” in the hands of judge, “since, in any case, the Law does not require to concrete any constituting facts of abuse”.