Malaga court recognises daughter's right to statutory share of estranged father's will

Father and daughter had virtually no contact for years. The estrangement had been going on for a long time, since 2009, when the parents separated and the man remarried.

He created his will in December 2017, excluding his only daughter and her descendants and naming his new wife as his sole heir.

The man cited two grounds for disinheriting a child: refusal to provide maintenance and physical abuse or serious insults (the latter may, according to case law, include psychological abuse). The problem lay in proving that this had in fact taken place.

The second wife claimed that the daughter had emotionally abandoned her father for over a decade, that she had not helped him when he was experiencing financial difficulties and that she had not shown any concern for him when he had health problems.

She stated that the young woman had testified against her father in criminal proceedings initiated following a complaint lodged by her mother in 2009, although he was eventually acquitted.

The ruling notes contradictions in the statements and "reasonable doubt as to whether the events actually took place".

During this latest trial, the breakdown of the family bond was clear. What was not proven was that the daughter bore sole responsibility for this, nor that she caused the father psychological harm of the severity required to justify his decision.

"The absence of contact between father and child cannot be equated with, or confused with, physical or verbal abuse," stated the first-instance judgement. The court did not find evidence that the man suffered permanent "emotional harm or distress" as a result of that situation.

The provincial court has now reached the same conclusion, establishing that the daughter was not solely responsible for the estrangement. It even notes that any confrontation "may well have been mutual". What the ruling declares proven is that the relationship broke down and was not repaired before the man's death.

The ruling states that there is no evidence that the father sought assistance from his daughter or that he was in a situation of need. The documentation examined also shows that he had assets and had carried out various property transactions.

The key issue was who bore the burden of proof regarding what had happened. Once the daughter had rejected the grounds set out in the will, it fell to the person seeking to uphold her exclusion to prove that those grounds were true. This is where the second wife comes in, as that obligation fell to her.

According to the court, she failed to prove this. There was "a lack of relationship between the claimant and her father", but not that this was "entirely and directly attributable" to the daughter.

The ruling completely overturns the deceased's wishes, as the daughter is recognised as the sole compulsory heir and recovers the two-thirds to which she is legally entitled: her strict statutory share and the 'mejora' share. Her father's wishes are respected only in respect of the one-third that he was free to dispose of as he wished.

No ordinary appeal may be lodged against the ruling.

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