The secrecy of private wills and the certification of the notary public of having been granted in multiple copies with identical content

Abstract

In private wills, the legislator has tried to balance two interests that are object of legal protection: to safeguard the testator who does not wish to communicate his last will to third parties and to assure that, once it is necessary to carry out his testamentary provisions, we face the will of whom can no longer be consulted. The complexity of the formalities that normally entail the granting of private wills has motivated its disappearance in modern revisions of succession law, usually replacing it with the simplicity of the holographic will and its subsequent registration and now also by certain digital documents. The Chilean Civil Code has not yet followed such path, but practice has provided for certain variants that aim to lessen any doubt of the testator’s last will in case of loss of the document, such as its granting of several copies with the same content, circumstance that is certified by the respective Notary. Through the review of the sources and the breakdown of its legal formalities, we intend to verify that such certification is not possible without compromising the validity of the will as it affects its essential feature (the secrecy of tis provisions), urging to discard such practice and, if necessary, search for a legislative modification that grants the desired certainty to the testator.