The burden of proving the natural incapacity of the testator lies with the party challenging the will

by Laura Catania

Abstract

Pursuant to the general principle set out in Article 2697 of the Italian Civil Code, according to which the burden of proving a fact lies with the party who relies on that fact in support of their claim, in matters concerning the invalidity of a will it is for the party challenging the will to prove the incapacity of the testator. This is because capacity constitutes the general rule, whereas incapacity represents the exception. However, where the deceased (de cuius) is shown to have been affected by total and permanent incapacity, the burden shifts to the party seeking to rely on the will to prove that it was executed during a lucid interval.

The case

After receiving several properties by will from his aunt, the heir brought legal action against the current possessor of those properties, asking the court to recognize his status as heir and to order the defendant to release the properties.

The defendant challenged the validity of the will, arguing that it had been executed when the aunt was already suffering from Parkinson’s disease and was therefore in a state of incapacity to understand and to will.

The Tribunal of Sassari annulled the will, finding that the deceased (de cuius) lacked natural capacity on the basis of the statements given by the doctors who had been treating her.

The first-instance judgment was appealed by the heir and subsequently overturned by the Court of Appeal. The appellate judges applied the well-established case-law principle according to which the burden of proving the invalidity of a will rests on the party who challenges it, who must demonstrate that the testator was in a state of natural incapacity at the moment the will was executed. In this case, the court held that such proof had not been adequately provided.

The possessor of the properties then filed an appeal before the Court of Cassation against the second-instance decision.

The Court of Cassation

The appellant argued that the Court of Appeal had wrongly considered the statements made by the testatrix’s treating physicians to be insufficient to prove her inability to make autonomous decisions at the time the will was executed. In other words, the appellant maintained that the appellate court had effectively carried out an unlawful reversal of the burden of proof to his detriment. According to this argument, the doctors’ statements should have been deemed sufficient to establish the incapacity of the de cuius, and it should therefore have been up to the opposing party (the heir) to prove that, at the time the will was executed, the testatrix was experiencing a lucid interval.

The Court of Cassation rejected the appeal, confirming the position of the Court of Appeal regarding the insufficiency of the evidence produced to prove the testatrix’s incapacity. In particular, applying the general rule on the burden of proof under Article 2697 of the Italian Civil Code, the Court reiterated that capacity is the general rule, while incapacity constitutes the exception. Consequently, the burden lies with the party challenging the will to fully and convincingly demonstrate the alleged incapacity of the testator.


The only situation in which the burden of proof is reversed occurs when the testator is shown to have been affected by a total and permanent incapacity. In such a case, the burden shifts to the party seeking to rely on the will, who must prove that the document was executed during a temporary lucid interval of the de cuius.

Remarks

With regard to the burden of proof concerning the testator’s natural incapacity, and thus the relationship between Articles 591 and 2697 of the Italian Civil Code, it should first be noted that the following persons are incapable of making a will:

  1. persons who have not reached the age of majority;
  2. persons legally declared incapacitated (interdetti) due to mental illness;
  3. persons who, although not formally declared incapacitated, were unable to understand or to form a will at the time the testament was made.

If one of these circumstances occurs, the will may be annulled at the request of any interested party.

However, according to the general rule governing the burden of proof, the duty to prove a fact lies with the party who relies on that fact in support of their claim. Consequently, the party challenging the will must prove the ground of invalidity of the act, namely that the testator lacked the capacity to understand and to make decisions at the time the will was executed. If this circumstance is not demonstrated in a complete and convincing manner, the will remains valid.