The Relationship Between Support Administration and Testamentary Capacity

One of the most delicate and frequent issues that arise when discussing the protection of vulnerable individuals concerns the possibility for someone under support administration to draft a valid will. Often, family members fear that the appointment of an administrator automatically deprives the beneficiary of the freedom to decide on their assets for the time after their death, or conversely, they worry about the validity of testamentary dispositions made by a person whose lucidity might be compromised.

As an expert lawyer in succession and family law in Milan, it is crucial to clarify that the institution of support administration was created with the aim of protecting the weaker party by limiting their capacity to act as little as possible. Unlike the old system of interdiction, which entailed total incapacity, support administration is a tailored solution: the capacity to make a will, therefore, does not automatically cease, but requires an in-depth analysis of the individual case and the appointment decree issued by the Guardianship Judge.

The Regulatory Framework and the Role of the Court of Milan

The general principle of our legal system establishes that the capacity to act, and therefore also the capacity to make a will, is presumed to exist until proven otherwise. Article 411 of the Civil Code provides that the Guardianship Judge, in the decree appointing the support administrator, may extend to the beneficiary certain limitations provided for those under interdiction, including the loss of capacity to make a will. However, if the decree does not explicitly mention this prohibition, the beneficiary retains the right to dispose of their assets through a will.

Jurisprudence, and in particular the orientation of the Court of Milan, tends to preserve the will of the beneficiary whenever possible. However, the validity of a will can be challenged not only based on the formal decree but also by verifying the subject's actual capacity to understand and intend at the time the document was drafted. This is where the matter becomes complex and requires specific expertise to avoid future disputes among heirs.

The Approach of Studio Legale Bianucci to Will Validity

The approach of Avv. Marco Bianucci, an expert lawyer in successions in Milan, is based on a rigorous analysis of clinical and legal documentation. When a client approaches the firm for issues related to the will of a person under support administration, the first step is a detailed examination of the appointment decree. We do not limit ourselves to a superficial reading: we assess whether the Judge has imposed specific limitations on acts of extraordinary administration or on testamentary capacity.

In cases where a will needs to be drafted for a beneficiary, Studio Legale Bianucci offers advice to ensure the document is unassailable, often suggesting the form of a public notary will in the presence of witnesses and, if necessary, supported by medical reports attesting to the testator's lucidity at the specific moment. Conversely, if the objective is to contest a will made by an incapable person, our strategy focuses on gathering evidence demonstrating any natural incapacity or violation of the Guardianship Judge's directives, always acting with the utmost discretion and sensitivity towards family dynamics.

Frequently Asked Questions

Can a person under support administration make a holographic will?

Yes, as a general rule, a beneficiary under support administration retains the capacity to make a will, including a holographic one (written in their own hand), unless the Guardianship Judge has expressly prohibited it in the appointment decree or in a subsequent order. However, it is essential that, at the time of writing, the person is capable of understanding and intending.

Can the support administrator write the will on behalf of the beneficiary?

Absolutely not. A will is a highly personal act that does not allow for representation. The support administrator can never substitute themselves for the beneficiary in drafting their last wishes, nor can they determine the content of the will. Any will drafted or dictated by the administrator would be null and void.

What happens if the judge's decree prohibits making a will?

If the appointment decree expressly provides for the incapacity to make a will, any will made by the beneficiary after such provision is voidable. The challenge can be brought by anyone with an interest within five years from the date on which the testamentary provisions have been executed.

How can a will made by a person with support administration be contested?

To contest the will, it is necessary to prove that the testator, at the time of drafting, lacked the capacity to understand and intend (natural incapacity) or that there was a formal prohibition in the appointment decree. The assistance of an expert lawyer in succession law is crucial for evaluating medical records and necessary expert reports to support legal action in court.

Request a Legal Consultation in Milan

Managing the assets and wishes of a vulnerable person requires technical expertise and human sensitivity. If you have doubts about the validity of a will or need assistance in managing a support administration, contact Avv. Marco Bianucci. At the firm's office at Via Alberto da Giussano 26 in Milan, we will analyze your specific case to identify the most correct legal solution and protect your rights and those of your loved ones.