The Testament is a unilateral legal act whereby the testator disposes of his estate in the event of death. When drawing up a will, the heir must have the freedom to decide on his assets and to be aware of his actions. The loss of the legal capacity that occurs when incapacitated raises the question whether an incapacitated person can draw up a will to produce legal effects after his death?
We distinguish two types of incapacitation – complete and partial. When incapacitated completely, man is utterly incapable of legal activity, meaning that he cannot perform any legal activity. An incapacitated person may, in part, carry out minor legal acts, i.e. conclude contracts which are part of the contracts commonly concluded in the small current affairs of everyday life.
The will created by the incapacitated person (completely or partially) will always be invalid. According to Article 944 KC may draw up and revoke a will only a person with the full capacity for legal acts. Thus, the appeal of the will by an incapacitated person will also have no legal effect.
In order for the will to produce legal effects, it must be drawn up at the time of having the capacity to act, i.e. by incapacitation. It is therefore important that the condition is at the time of the declaration of will. From the point of view of the validity of the will, it is not important that, after drawing up the will, the heir was incapacitated. It will also be important to have a will drawn up after the waiver of incapacitation.
In a situation where there are grounds for incapacitating a person, but no motion for incapacitation is made, there is no grounds for questioning the validity of the will. Such a person had the capacity to act, and thus the ability to draw up a will with legal effect.
Hence, other measures can be sought to undermine the succession’s declaration that the will is invalid. The question of the annulment of the will governs Article 945(1) KPC.
According to that provision, a will is invalid if it is drawn up in a state that excludes the conscious or free making of decisions and the expression of will, if it is made under the influence of an error justifying the presumption that if the heir had not acted under the influence of error, he would not have drawn up a will of this content or was drawn up under threat.
In case of demonstration of circumstances resulting from Article 945(1) KC, the will will be void. There is a time limit in this respect, since the nullity of the will cannot be invoked after three years from the date on which the person having an interest in it learned of the cause of the annulment, no later than 10 years after opening the inheritance.
If a will is invalid or an incapacitated person does not make such a will, the estate is inherited by law.