Ordering your property by drawing up a will is the right of any person with the full capacity for legal acts. However, the person making the will is not always aware of the effects of this legal act, or acts under external influence, against his own will. That will be void.
According to Article 945(1)(1) The KC will is invalid if it has been drawn up in a state excluding consciously or freely making decisions and expressing will. This condition is undoubtedly the most common defect in court practice of a declaration of will. It should be noted that the state of consciousness and freedom is two Different states.
The case-law assumes that the succession in a condition excluding conscious testing determines the effect of disturbances in its mental activities on its orientation as to the meaning and effects of the action taken.
The case-law assumes that the succession in a condition excluding conscious testing determines the effect of disturbances in its mental activities on its orientation as to the meaning and effects of the action taken. Free action can be referred to when the mental function is unrecognizable, that is, when the decision-making and will-expression process was not disrupted by destructive factors, excluding the individual’s autonomy, and the inheritance was not guided by motives of a morbid nature[1].
When assessing whether a will has been drawn up in a condition that excludes informed decision making, consideration should be given to the mental state of the testator.
The assessment of this condition must take into account his health, age and circumstances, which may temporarily or permanently restrict, or exclude, the tester from consciously making decisions and expressing his will.
In the case law, it is claimed that Article 945(1)(1) KC refers to the case where mental disturbances affect the understanding by the testator of the meaning and effects of the activity[2].
The reason for the condition that excludes conscious decision making and the expression of will may be mental illness, mental retardation, or other mental disorders. However, the finding of mental illness in the heir does not automatically lead to the annulment of the will.
In that case, it is necessary to carry out evidence from the expert's opinion in order to determine the test capacity of the heir at the time of his will.[3]. Importantly, remaining in treatment, including in a closed institution, is not sufficient to automatically challenge the validity of the will.
Another cause may also be severe, exhaustive disease, causing inability to respond to external factors such as brain cancer. The extent of the diseases causing the deactivation of consciousness or the freedom of the heir is essentially unlimited.
An extremely important role in court proceedings in which the charge of the annulment of the will is raised is therefore played by experts and doctors who are able to assess the health of the heir at the time of the testament.