Challenging a will due to the testator's lack of capacity is a topic that generates significant interest and complexity in our daily practice. This is not only because it touches on deeply personal and familial aspects but also because it presents important evidentiary and legal challenges. In this article, we will discuss how this challenge is articulated, the presumption of the testator's capacity, the burden of proof that falls on the challenger, and how retrospective medical reports are evaluated, especially in cases of Alzheimer's and other dementias. We will also analyze the distinction between actions for nullity and annulability, with references to the most relevant jurisprudence.
Presumption of Capacity and the Role of the Notary
One of the fundamental pillars in challenging wills due to incapacity is the presumption of the testator's capacity, especially when the will has been executed before a notary. According to Article 663 of the Civil Code, it is presumed that every person is capable of making a will, unless proven otherwise. This presumption is reinforced by the role of the notary, who, in the exercise of their function, must ensure that the testator fully understands the act they are performing.
The Supreme Court ruling of January 15, 2014, establishes that notarial intervention grants a presumption of truth regarding the testator's capacity. However, this presumption is not absolute and can be rebutted by adequate evidence. Here, the burden of proof lies with the person challenging the will, making it crucial to present compelling evidence to question the notary's assessment.
Burden of Proof and Evaluation of Medical Reports
The burden of proof is a critical aspect in these proceedings. The challenger must demonstrate that, at the time of executing the will, the testator lacked the necessary mental capacity. This requires not only documentary evidence but also testimonies and, in many cases, medical reports that analyze the testator's mental state retrospectively.
Retrospective medical reports are valuable tools but must be handled with caution. The jurisprudence of the Supreme Court has been clear that these reports must be detailed and specific, evaluating the testator's mental state at the specific moment of execution. In cases of diseases like Alzheimer's, it is essential that the report reflects how the disease affected the testator at that specific time, beyond a general diagnosis.
Alzheimer's and Other Dementias in Jurisprudence
Dementias, particularly Alzheimer's, are common in cases of challenging wills. The jurisprudence of the Supreme Court has repeatedly addressed how these conditions affect the capacity to make a will. In Alzheimer's, where the progression of the disease can be gradual, the testator's capacity may fluctuate, presenting additional challenges for assessment.
In the Supreme Court ruling of February 5, 2025, a case was analyzed where the testator, diagnosed with Alzheimer's, had executed a will at a time when, according to medical reports, they were still capable of understanding and valuing the act. The ruling emphasized the importance of the specific moment of execution, stating that the mere existence of a neurodegenerative disease does not automatically imply incapacity to make a will.
Action for Nullity vs. Annulability
A crucial aspect to consider is the distinction between the action for nullity and that of annulability in the context of the testator's capacity. The action for nullity refers to essential defects in the legal act that render it nonexistent or invalid ab initio. On the other hand, annulability implies that the act is valid until declared invalid by a court.
In practice, the choice between one action or the other not only affects procedural strategy but also the retroactive effects and the patrimonial implications for the heirs. Jurisprudence has distinguished between cases where the lack of capacity is absolute, which could lead to nullity, and those where capacity is questionable but not nonexistent, which could lead to annulability.
- Carefully evaluate the testator's capacity at the time of execution.
- Consider notarial intervention as a presumption of capacity, not as absolute proof.
- Utilize detailed and specific medical reports regarding the testator's mental state.
Conclusion
Challenging wills due to lack of capacity is a complex process that requires meticulous analysis of evidence and a deep understanding of jurisprudence. In our practice, we have seen how technology can facilitate these processes. Tools like LexPartis provide legal professionals with the ability to diligently manage these matters, ensuring that all legal and evidentiary aspects are addressed with the necessary rigor.