In the scope of testamentary law, the testator’s ability to freely and consciously express their will is essential. When it comes to elderly persons, it is necessary to consider certain specific aspects that the case law has outlined over time.
As established by the Italian Court of Cassation with ruling no. 26873/2019, it is presumed that an elderly person is able to draw up a will, and any incapacity must be assessed on a case-by-case basis. Natural incapacity does not coincide with a generic alteration of mental faculties, but requires the complete absence of awareness of one’s actions and complete inabil-ity to self-determine. It is not correct to assume that advanced age automatically entails a decline in cognitive abilities or the capacity for self-determination. Without a doubt aging can lead to changes in the perception of reality, but this does not necessarily imply incapacity.
A critical aspect, highlighted by the Italian Court of Cassation with ruling no. 5620/1995, concerns the psychological vul-nerability of the elderly individuals, who may be more susceptible to external suggestions. The Court paid particular atten-tion to senile diseases that cause decision-making weaknesses, the weakening of emotional awareness, and the risk of sug-gestion from caregivers. This becomes problematic when a will is influenced by external motivations, thereby undermining the rights of legitimate heirs.
As clarified by the Italian Court of Cassation with ruling no. 30424/2022, the burden of proof regarding incapacity lies with the party challenging the will. However, in the case of total and permanent incapacity, the burden of proof shifts: the party seeking to enforce the will must demonstrate that it was made during a moment of clarity.
The Italian Court of Cassation, in ruling no. 18042/2020, established specific criteria for assessing the validity of a will, in-cluding:

  • The content of the will;
  • The coherence and rationality of its provisions;
  • The testator’s intentions and motivations;
  • The clinical and personal circumstances;
  • The testator’s cultural background and mindset.

Even in the case of a notarial will, the issue of will capture is not to be underestimated. Although the notary may act as a barrier against external influences, suggestions can still arise before the notarial deed.
The case law emphasizes the importance of examining the consistency and rationality of the testamentary provisions. The testator’s wishes must reflect a reasonable understanding of emotional relationships and economic purposes, in order to identify any undue influences.
A will can be annulled if it is proven that the testator’s will was manipulated through fraudulent means, especially in the case of vulnerable elderly persons. This recognizes that, although age in itself is not a cause of incapacity, the presence of pathologies that compromise cognitive abilities can justify the invalidity of the will.
In conclusion, the protection of elderly testators must be guaranteed not only in cases of manifest illnesses, but also in sit-uations of emotional vulnerability, to prevent their will from being unduly influenced. The issue of influencing the will should be viewed as a defect of the will, rather than mere incapacity, to ensure adequate protection of the rights of the el-derly.