La capacità di testare del beneficiario di amministrazione di sostegno

Marianna Rinaldo

In press

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Abstract

The paper analyzes one of the Supreme Court's recent rulings on testing capacity and support administration, starting from an analysis of testamentary formalism, with particular attention to the public one. The drafting of a public will “assisted” by the support administrator creates a flaw in the testamentary formalism according to the provisions of art. 603 of the Civil Code. The public will is received by the notary in the presence of only two witnesses and, as a highly personal act, must be the expression of a conscious, free, autonomous, and independent will. The involvement of a representative or assistant in the drafting of a will to support the will-forming process, even if such presence were previously (and erroneously) authorized by the guardianship judge, determines a procedural defect that makes it imperative to declare the will null and void and the responsibility of the notary who failed to refuse to receive an act contrary to the legal requirements.