Everything begins when everything ends.
The testament
Who was going to tell all of us, that with what we have loved our brothers, cousins, nephews, uncles and other close relatives, and we have been for them, we reached the fateful moment of last farewell, a catastrophe of such magnitude was going to occur, the end of the happy days, the moment of the achievement of the problems, the beginning of the end: The will.
Well yes, after all those circumstances that happen, one after another, until the chapter is definitively closed here in the land of our beloved family member, Pandora's box opens, the box of thunder, the storm is unleashed, it opens the door to all kinds of events that are “anything” but pleasant and much less controllable.
The interests intermingle, the need to end the problem accelerates, as if it were a bad omen and where before there was peace and understanding, now there is only incomprehension and unease, desire to leave, or, rather, desire to put an end to these steep falls of feelings.
Indeed, we find ourselves, as we have said before, with the “Testament”, that document which, according to the extensive doctrine of our country, is considered and I transcribe literally in the words of the jurist, professor and magistrate of the High Constitutional Court, Don Luis Diez-Picazo, as that legal, formal, unilateral business, of a very personal nature, granted by the testator, who freely expresses his willingness to dispose of their assets and rights, as well as their obligations and designate one or more people after his death, hence it is a mortis causa legal transaction.
In truth, it is very necessary to take into account the possibility that the Law 5/2012 of July 6 today to go to mediation in this situation and in this way, resolve all those issues that may arise as a result of the problems that may arise regarding the will.
This tool will make it easier for us and even prevent us from reaching this bridge, so that these conflicts that once they appear are so difficult to resolve, do not occur.
Entering into question, the testator orders in his will that any disputes that may arise around it, regarding the interpretation, execution, effectiveness and even division of the inheritance, be submitted to mediation.
Clause for submission to mediation in the will
To this end, some notaries and law firms are considering the implementation of the clause for submission to mediation in the will.
It is recommended that when this clause is established where the figure of the mediator, this is appointed taking into account their professional qualification, which can perfectly be a natural person or a legal person, that is, a Mediation Institution.
But in reality, the importance of the existence of this clause is also the following reality, and that is that, in the event that mediation is not possible, in other words, no agreement is reached through this technique, can go to a arbitration.
Tiered multimodal clauses
Hence we can talk about staggered multimodal clauses, that is, those clauses of only mediation or phased (mediation or arbitration in its absence) for which the testator orders that the parties submit the dispute to arbitration of law administered by the mediator, in the event that the mediation has not obtained the desired result.
This provision is essential when there is forced heirs, so that, once arbitration is requested by any of the interested parties, the others involved in the controversy will expressly adhere to the arbitration and If someone does not do it or opposes In any case, the testator orders arbitration be deprived of all rights in the succession or, if it is a forced heir, reduced to his strict legitimate inheritance, increasing his share to the other heirs.
As a conclusion, the testator must be informed, with complete fidelity, of the consequences of the clause of submission to mediation and arbitration as alternative means of conflict resolution, and especially that arbitration implies the exclusion of judicial channels, as well as the possibility of choosing between various Arbitration or Mediation Institutions.
