Testamentary Nullity and Capacity Assessment of a Testator with Alzheimer´s Disease: Facts and Evidence at Trial

Abstract

The neurodegenerative progression experienced by Alzheimer’s disease (AD) patients represents a specific case scenario that allows them, during what is herein defined as the financial vulnerability window, to easily meet the notarial capacity assessment requirements in the early stages of the disease. This occurs even when their natural volitional and non-volitional capacities are insufficient to execute a will, as such capacities remain intact only in dimensions other than the economic, financial, and patrimonial spheres. During this financial vulnerability window, additional factors, such as dependency on third parties (typically cohabitants) and an impaired understanding of the consequences of one’s actions and planning capacity, make them susceptible to undue influence. Within this context, we analyze the protective inefficacy of the notarial capacity judgment regarding persons with this type of disability. This analysis is conducted in light of a favorable first-instance court ruling in a case where the author acted as legal counsel in challenging a will executed by an AD patient. Particular attention is given to the inherent challenges of annulment claims, especially considering the principles of favor testamenti and in dubio pro capacitate.