TESTAMENTO OLOGRAFO E VARIAZIONI GRAFICHE IN CASO DI SCOMPENSI TIROIDEI

Pursuant to Article 591 of the Civil Code, "...anyone not declared incapable by law may make a will..." Persons considered legally capable, that is, adults and those not under interdiction, are normally able to provide for themselves. However, it may happen that a person, although legally capable, is incapable of understanding and willing for various reasons (permanent or temporary natural incapacity—the mentally ill, the elderly, the seriously ill, the person under the influence of drugs, etc.). Jurisprudence is now unanimous: to annul a holographic will, it is not sufficient to simply demonstrate "...a mere anomaly or alteration of the mental and intellectual faculties..."; it is necessary to demonstrate that, due to "...a temporary or permanent infirmity, or other disruptive cause, the person was absolutely deprived, at the time of drafting the will, of awareness of his or her own actions or the capacity for self-determination...". The problem, therefore, is how to establish whether the will was written when the subject was suffering from dementia or, vice versa, when the testator was, albeit within the appropriate age limits (aging), substantially lucid and capable of understanding his own actions. And if he was suffering from dementia, whether he was in a state of absolute incapacity to understand and make decisions. It is not always easy from a medico-legal perspective to demonstrate the testator's intellectual capacity at the time of drafting the will, and this very aspect constitutes a primary source of dispute among interested parties. The difficulties in assessing it arise primarily from the fact that it is an assessment made after the fact, based on the documents, referring to that precise moment (the drafting of the will) and, in a holographic will, in the absence of witnesses. For this reason, the assessment must be multidisciplinary, using medical documentation (medical history, medical records, informed consent, disability, drug therapy, anantomopathological findings, etc.), circumstantial data, and, in the case of a holographic will, the handwriting and content of the will. In a holographic will, the differential diagnosis of other conditions that could compromise writing is also of great importance: rheumatological conditions (e.g., rheumatoid arthritis), hand tremors, visual impairments, central/peripheral agraphia, or simply the loss of the habit of writing.