Witnesses for a will in Costa Rica: who can serve and who cannot

In Costa Rica there is no will without witnesses

A lot of people think witnesses are a detail of the paperwork, something to sort out on the day with whoever is around. It is the other way round. A will is a solemn act: the law does not only require your wishes to be clear, it also requires them to be expressed in a particular form. The witnesses are part of that form, and when the form fails, the whole will can fail.

If you are just starting and want the full picture — what a will is, what you may dispose of and what you may not — it is in wills in Costa Rica.

Every form of will the Código Civil (the Civil Code) regulates has witnesses. What changes is how many:

If you are making your will at a notary’s office, the row that matters to you is the first one. Article 583 puts it this way, in nineteenth-century Spanish where "cartulario" means notary: an open will may be executed before a notary and three witnesses, but two witnesses and the notary are enough if the testator writes the will themselves; or before four witnesses without a notary if the testator writes it, or six if the testator does not.

Puede otorgarse testamento abierto: 1.- Ante un cartulario y tres testigos; pero si el mismo testador escribe el testamento, bastan dos testigos y el cartulario. 2.- Ante cuatro testigos sin cartulario; si el testador lo escribe; o ante seis testigos, si el testador no lo escribe.

Civil Code of Costa Rica, article 583

Unless you write your own will, count on three witnesses. If you are thinking of writing it yourself, talk it over with the notary first.

If you want to understand the substantive differences between the open will and the closed one (who knows the contents, where the document is kept, which one suits each case), that is explained in the open will in Costa Rica and in the closed will in Costa Rica. Here we stay with the witnesses.

What if one of the witnesses does not sign?

In an open will before a notary, at least two of the witnesses must sign. If one of them does not, the will itself has to say who did not sign and why (Civil Code, art. 585). That does not mean anyone can serve as a witness even if they cannot sign: the Código Notarial (the Notarial Code) requires witnesses to be able to read and write (art. 41). The way out in article 585 is meant for someone who is present and eligible but cannot sign at that moment.

Present throughout the execution

The law requires the formalities of an open will to be carried out "en acto continuo", as a single, uninterrupted act (Civil Code, art. 585). That refers to the execution itself, not to earlier meetings with the lawyer: on the day of signing, the witnesses have to be present from the reading of the will through to the signatures. The will is read out before the witnesses (art. 585, subparagraph 2), and at the end of the act the notary reads the deed to the parties and to the witnesses (Notarial Code, art. 91).

So it is no good for a witness to turn up only to sign at the end, or to sign on another day because "they could not make it that day". If someone cannot stay for the whole execution, they are not a good witness.

An oddity: the will for soldiers in a country with no army

The Civil Code still regulates a "privileged" open will for soldiers on campaign, in a besieged town or held prisoner by the enemy, and for seafarers (art. 586). It is valid only if the testator dies during that situation or within the following thirty days. In a country that abolished the army as a permanent institution (Political Constitution, art. 12), the military part is close to a museum piece. It is useful for seeing the logic of the law: even in an extreme situation, a will has witnesses.

And the will without a notary?

The law allows it: four witnesses if the testator writes it, six if not (art. 583, subparagraph 2). But it rarely suits. More witnesses means more chance that one of them is barred. There is no notary to assess your capacity (Notarial Code, art. 40) or to vet the witnesses. And when you die, your family will have to ask a judge to verify the will before they can use it; in that procedure the judge summons the witnesses to ask them about their signatures and about the formalities (Code of Civil Procedure, art. 118). An open will executed before a notary does not need that verification. The Sala Segunda case we tell below was precisely a will made before six witnesses, with no notary.

Who can be a witness: the basic requirements

The Civil Code does not carry its own list of requirements for will witnesses. It refers them to the rules on instrumental witnesses (art. 589), which today sit in the Notarial Code. There the requirements are three (art. 41):

1. Being of legal age.
2. Being able to read and write.
3. Having no legal impediment. The impediments are in article 42 and we go through them in the next section.

That same article 42 adds that anyone lacking the physical or mental capacity to bind themselves is absolutely barred from being a witness.

The other requirements for a will — the capacity to make one, what you need to bring and the step-by-step of the appointment — are in how to make a will.

With an identity document, and their name stays in the deed

The will deed includes the given name, surnames, domicile and identification of each witness (Notarial Code, art. 92, subparagraph a). Every witness has to arrive with a suitable identity document: the cédula if they are Costa Rican, or whatever document applies if they are a foreign national (arts. 39 and 85). And it stays on record forever who witnessed your will, a detail that matters, as you will see.

The law presumes that instrumental witnesses are known to the notary and have the legal capacity to serve (Notarial Code, art. 95, subparagraph b). In practice, the notary has to vet them. If you are bringing the witnesses, the sensible thing is to send the notary their names and identification numbers before the appointment, so they can be checked calmly and not on the day.

Instrumental witnesses and witnesses of knowledge are not the same

Will witnesses are instrumental witnesses: they attend the execution and sign as a record that it happened. Witnesses of knowledge are a different figure, used to identify a person before the notary. Today identification is normally done with the identity document (Notarial Code, art. 39). The same basic requirements of article 41 apply to both, but when we say "the will’s witnesses" we mean the instrumental ones.

They do not have to know your life

A very common misconception is thinking the witness has to be someone very close, someone "you trust completely". The law does not ask for closeness: it asks for eligibility. And with witnesses, closeness is usually the problem itself.

Who CANNOT be a witness to your will

This is the part that puts the most wills at risk. Article 42 of the Notarial Code sets the impediments that depend on the witness’s relationship with the act: relatively barred are anyone with a direct or indirect interest in the act, contract or transaction, as well as the spouse, siblings, ascendants or descendants up to the second degree of blood relationship or affinity, of the notary or of any of the parties executing it.

Están relativamente impedidos para ser testigos instrumentales, quienes tengan interés directo o indirecto en el acto, contrato o negocio, así como el cónyuge, los hermanos, ascendientes o descendientes, hasta segundo grado de consanguinidad o afinidad, del notario o cualquiera de los otorgantes.

Notarial Code, article 42

In a will, the "party executing it" is you. Translated into real life, three groups are out.

1. Your close family, even if they receive nothing

The law excludes your spouse, your siblings, and your ascendants and descendants up to the second degree, both by blood and by affinity. For example:

• your parents and your grandparents;
• your children and your grandchildren;
• your siblings;
• your relatives by affinity in those degrees, that is, your spouse’s family and the spouses of your family: your parents-in-law, your sons- and daughters-in-law, and your spouse’s children.

The list is not exhaustive; what governs is the rule in the law. As a matter of prudence, leave your brothers- and sisters-in-law out too.

The important part: it makes no difference whether you leave them anything. Your brother cannot be a witness even if he appears nowhere in the will. The impediment comes from the family tie, not from the inheritance.

2. The notary’s close family

The same rule applies with respect to the notary: their spouse, their siblings, and their ascendants and descendants up to the second degree, by blood or by affinity. The notary controls this, but it is worth knowing: if one of your witnesses is related to them, say so.

3. Whoever receives something, and their close family

Anyone with a direct interest in the will cannot be a witness: the heirs, the legatees (whoever receives a specific asset) and anyone who benefits from what you dispose.

The law also excludes anyone with an indirect interest, and that reaches the family of whoever receives something:

• In a will before a notary, the Notarial Code forbids the notary to authorise the act if the witnesses or their spouses or partners, ascendants, descendants, siblings, uncles and aunts, or nieces and nephews have an interest, whether by blood or by affinity (art. 7, subparagraph c). Translated: if you leave something to a person, neither that person nor their partner, parents, children, siblings, uncles and aunts, or nieces and nephews can be witnesses. The neighbour of a lifetime can be an excellent witness… unless you leave something to her daughter.
• In a will without a notary that prohibition on the notary does not apply, but the indirect interest of article 42 does. That is how the Sala Segunda applied it in judgment 2009-001285, which we cover below. There the witness was the wife of one of the heirs, and the court held that the benefit to her husband "flowed to and profited" the family unit they formed.

Cases worth avoiding even though the law does not name them

• The executor. The law does not list them as barred. But the person you appoint to carry out your will takes on a role that can be paid, and someone could argue they have an interest. We recommend they not be a witness. What an executor does and how to choose one is in what an executor is.
• Your partner in a common-law union. If they receive something, they are out for direct interest. If they receive nothing, we still recommend finding another witness: it is not worth opening an argument for anyone. How to protect your partner if you are not married is in wills and common-law unions.
• The person who cares for you or comes with you to the appointment. If they receive something, they are out. And even if they receive nothing, if they are someone you depend on, it is better that they do not sign: an older person’s will signed in the presence of their carer is fertile ground for alleging pressure. When a will can be annulled on those grounds is in when a will can be annulled.

So who can?

More people than it seems: friends, neighbours, colleagues or former colleagues, people from your community group, your cousins, and even your uncles, aunts, nieces and nephews (who are in the third degree, outside the list in article 42). As long as they are of legal age, can read and write, and neither they nor their close family receive anything in your will.

Careful with nieces and nephews in a will before a notary. If you leave something to any of your siblings, your nieces and nephews are out, because that sibling is the witness’s parent or uncle or aunt (Notarial Code, art. 7, subparagraph c). Your nephew can be a witness only if you leave nothing to him or to his close family.

A case to put it into practice

An illustrative case. Doña Marta is 76, a widow, and lives in Cartago. She wants to leave the house to her daughter Ana, who looks after her, a plot of land to her youngest son, and the sewing machine to Sofía, her neighbour’s daughter, who helps her with the shopping. For the appointment at the notary’s office she thought of three witnesses: her eldest son Jorge, who receives nothing "because he already has his"; her daughter-in-law Silvia, Jorge’s wife; and her neighbour of thirty years, doña Lidia. All three fail her:

• Jorge is her son. He is barred even though he receives nothing.
• Silvia is her daughter-in-law, a relative by affinity in the first degree. Barred.
• Doña Lidia would be a good witness… but her daughter Sofía gets the sewing machine. Under article 7, subparagraph c, she is out.

Doña Marta needs three people who are not close family and who have nobody close among those receiving something. For instance, a companion from her seniors’ group, a neighbour from the next block or a former workmate. Or she can ask us to line up the witnesses.

What happens if a witness was not allowed to serve

It depends on the defect. The Notarial Code speaks of absolute nullity in certain cases, for example where the prohibition in article 7, subparagraph c was breached (art. 126, subparagraph d). It speaks of voidability where a witness has an impediment with respect to the notary or the party executing the deed under article 42 (art. 127). And the Civil Code punishes with nullity those acts that fail to meet the formalities the law requires (art. 835). That difference changes who may bring a claim and within what time limit, and it is explained in when a will can be annulled. What matters here is the possible outcome: that the entire will falls.

The Sala Segunda case: the whole thing fell, not just a part

In judgment 2009-001285 of 9 December 2009 (case file 02-000748-0504-CI), the Sala Segunda of the Supreme Court of Justice reviewed an open will executed before six witnesses, with no notary. One of the witnesses was the wife of one of the heirs. The court applied article 42 of the Notarial Code through the referral in article 589 of the Civil Code and concluded that the witness had an indirect interest.

There are three lessons in that ruling:

1. The entire will was annulled. The court said expressly that it was not possible to annul it only insofar as it appointed the witness’s husband as heir, because the failure of form taints the whole act.
2. Fixing it afterwards did not work. The heir renounced his inheritance, but the court made clear that the renunciation does not cure the defect: the eligibility of the witnesses is assessed at the moment the will is executed.
3. The estate was distributed as if there were no will. What the person had decided stopped mattering. How the law distributes an estate when there is no valid will is in who inherits when there is no will.

If you have read rules from other countries online, do not rely on them: in some, only the part benefiting the witness or their family is annulled. In Costa Rica, the Sala Segunda said the opposite.

With an open will, your witnesses hear everything

This is the detail almost nobody thinks about before inviting someone. An open will is read out before the witnesses (Civil Code, art. 585, subparagraph 2; Notarial Code, art. 91). Your witnesses are going to know who gets what, today, while you are alive, sitting at the same table as you.

With a closed will it is different: the witnesses attend the handing over of the sealed envelope to the notary and sign the deed and the endorsement on the envelope, but the contents stay inside (Civil Code, art. 587). They do not hear it.

The contents of an open will are not published and nobody notifies your family. Nor is it an absolute secret: the Archivo Notarial (the National Notarial Archive) keeps a register of wills (Notarial Code, art. 25, subparagraph c), as we explain in the open will. But hardly anyone searches that register. The most concrete risk of your arrangements becoming known ahead of time sits with the person who sat there listening. In a neighbourhood or a small town, a neighbour learning before your children that the house goes to only one of them can start exactly the fight you wanted to avoid.

They may have to testify years later

If someone challenges your will, for instance claiming you were not in a condition to make one or that you were pressured, the witnesses may be called to testify about what they saw. That can happen years later, even decades. It is worth choosing people who can be found. Their details stay in the deed (art. 92), but a person who has left the country or of whom nobody has heard anything is no use to your family.

What is more, since the 2025 reform the Notarial Code allows the notary to keep audio or video recordings of the acts they authorise, in their reference archive (art. 39). If you are worried that someone might fight your will, talk to the notary about whether it is worth recording the execution. How a will is shielded against a challenge is in when a will can be annulled.

If you would rather not bring witnesses, we line them up

If you do not have three people who clear the checklist below without doubts, or you would rather nobody around you heard your arrangements, we can line up the witnesses for you:

• Vetted before the appointment. People of legal age who can read and write, with no family tie to you, to the notary or to anyone receiving something in your will.
• Less exposure in your own circle. They are not from your neighbourhood or your family. They sign a written confidentiality undertaking.
• Zero coordination. You do not have to ask anyone for a favour, juggle schedules or pray that everyone turns up. If the notary comes to your house, the witnesses come with them.

On top of that, we apply controls that go beyond the legal minimum:

• They have no interest whatsoever in the contents of your will and earn no commission on the sale of your service.
• If the firm, or anyone on its team, appears in your will in any role (executor, trustee, beneficiary), the witnesses have no connection to the firm: they neither work with us nor form part of the witnesses we line up.
• Nobody related to the notary.

What it costs. Each witness we line up costs ₡25.000 plus VAT; all three, ₡75.000 plus VAT. They are added to the will deed itself, ₡121.000 plus VAT. In the estate planning package the witnesses are included. The full breakdown of what a will costs, with every add-on, is in what a will costs.

And we say it plainly: if you have three people who clear the checklist, bring them. They cost you nothing.

If you make your will in another language: interpreters follow the same rules

To make a will before a notary in a foreign language, the Civil Code requires two interpreters chosen by the testator (art. 584). The Notarial Code applies to them the same rules on capacity, conditions and prohibitions as to instrumental witnesses (art. 72). In short: the checklist below also works for vetting your interpreters. We can suggest interpreters, but the choice is yours. Their cost is in what a will costs.

A checklist to go through each witness before the appointment

It is written for the will before a notary, which is the one we recommend. Ask these questions about each person you are thinking of bringing. If a required answer comes out wrong, change witness.

1. Are they of legal age? Must be yes.
2. Can they read and write? Must be yes.
3. Do they have a suitable, valid identity document? Must be yes.
4. Are they your spouse, your father or mother, grandfather or grandmother, son or daughter, grandson or granddaughter, brother or sister? Must be no.
5. Are they your father- or mother-in-law, son- or daughter-in-law, or your spouse’s child? Must be no. Are they your brother- or sister-in-law? Better not.
6. Do they receive anything in your will? Must be no.
7. Do their partner, parents, children, siblings, uncles and aunts, or nieces and nephews receive anything in your will? Must be no.
8. Are they a close relative of the notary? Must be no. If you do not know, ask.
9. Can they be present for the whole execution, from the reading through to the signatures, and sign? Must be yes.
10. Are you going to appoint them executor? We recommend not.
11. Are you comfortable with them hearing your whole arrangement, and could you find them many years from now? Ideally, yes.

Send the notary the names and identification numbers of your witnesses before the appointment. If one of them does not clear it, it is far better to find out days ahead than on the day itself — or worse, when you are no longer here.

Frequently asked questions