Abstract

The Supreme court correctly in principle recognized that Art. 945 and 949 of the Civil Code constitute two separate grounds for the invalidity of a will. A will may be invalid for several different reasons, among other things because of incapacitation of the testator, defects of the declaration of will and for formal reasons. However, objections are raised as concerns the interpretation of Art. 949 § 2 of the Civil Code adopted by the Supreme Court. The Supreme Court views the expression “unless it raises doubts as to testator’s capacity” as referring to the capacity to make a will (Art. 944 § 1 of the Civil Code), but not covering lack of consciousness or freedom (Art. 945 § 1.1 of the Civil Code). Meanwhile, it should be considered that if a will is not dated and therefore a doubt arouses as to whether at the time of its drawing the testator was capable of making a valid will (i.e. had full legal capacity to act, and acted consciously and freely), the will is invalid. It should be added, by the way, that a distinction should be made between validity (invalidity) of a will as a whole and individual bequests. The existence, validity and effectiveness of a will is a sine qua non condition for the effectiveness of all bequests therein, though it is not a sufficient condition. The validity and effectiveness of each individual bequest should be additionally assessed from the viewpoint of the regulations appropriate for each bequest.