Today is the United Nations’ International Day of older persons. The question may arise as to whether you are capable of making a will despite serious illness.
Are you seriously ill and wish to provide for your loved ones?
The testator developed cancer and died of it in December 2014. Prior to this, he registered his partnership with C in July 2014 and made a public will in August 2014. He appointed his partner C as universal heir.
Lack of testamentary capacity
Do you desire to reduce the risk of your relatives suing your appointed heir, claiming that you lacked testamentary capacity?
His sisters sued, among others, C. They also claimed that the testator was incapable of disposing.
An action of declaration of invalidity
A testamentary disposition may, where contested, be declared invalid if it was made by the testator at a time when he lacked testamentary capacity (cf. Art. 519, par. 1, cipher 1, Swiss Civil Code). Only those who are capable of judgment can dispose of his or her property by drawing up a will.
All those who can act rationally have the capacity of judgement. Mental disability, mental disorder, intoxication or similar conditions do not prevent them from doing so (cf. Art. 16 CC).
Judicious
A testator must be capable of discerning the meaning, purpose and effect of his actions, as well as acting according to his free will. Judgment is always relative, related to a particular action.
The ability of adults to act reasonably is the normal case (see Federal Supreme Court judgment 5A_763/2018 of July 1, 2019, Consid. 4.1.3). Otherwise, the states of weakness and the impaired ability to act reasonably must be proven.
Act reasonably
In the present case, even though the testator was seriously physically ill, had paralysis and speech disorders, he was able to act rationally. When the partnership was registered, the civil registrar did not doubt that the decedent had the capacity of judgment. The video recording of the ceremony did not indicate that the decedent was incapable of acting rationally. Furthermore, medical reports were available stating that the decedent appeared capable of acting and judging and that there were no obvious indications of confusion, perceptual or thought disorders (Consid. 4.5.2.2).
The Federal Supreme Court held that cannabis consumption and the intake of morphine do not per se lead to incapacity of judgement. It would have to be proven at what quantities a state of intoxication occurs and impairs rational action (Consid. 4.5.2.3).
What should be done
Seek comprehensive advice when devising. There are many things to consider. Sometimes it is advisable to have one’s judgment confirmed by specialists shortly before drawing up a will.