- Posted by Francesca Dimunno
Was the testator in good physical and mental condition when she/he drafted the holographic will?
The testator can draft an holographic will which is regulated by article 602 of the Italian Civil Code, this kind of will does not require particular forms and it is not required it should be drafted in the presence of witnesses, nor in the presence of a Notary. The document will contain the testator’s wishes, expressed without any external influence.
The Italian Civil Code specifies that the holographic will must be fully hand written by the testator who must necessarily insert the date specifying the day, month and year and then sign the document.
Therefore, so as to be valid, the holographic will must be drafted by the testator, and must contain date and signature.
As far as the date is concerned, the Supreme Court of Justice highlights that the date must always be placed at the end of the will dispositions. In fact, the testator may well decide to draft the document at different times and then complete it progressively, in fact there are no rules within the Italian system that establish that the will be written in all one go.
The date of the will can be a decisive factor in establishing the validity of the will. It must be considered that despite the date being an essential requirement of the will, a false date is not sufficient to make the will null and void.
The will can be subject to a nullity action by an heir, if the heir can prove that the date on the will coincides with a period during which the testator was affected by pathologies affecting his physical and mental conditions. The nullity action must be based on the circumstance that the testator, at the time of the date on the will, was incapable of discernment, therefore, the will must be considered invalid.
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