Will null and void if there is assistance from the support administrator
If the person making the will is deemed to be of sound mind
The public will dictated to the notary, with the assistance of the support administrator (authorised by the tutelary judge), by a person capable of understanding but subject to support administration is null and void.
This was decided by the Supreme Court of Cassation in Judgment 2648 of 6 February 2026.
The pronouncement clarifies that the public will, by its very nature, does not allow for forms of assistance or participation of persons other than those expressly indicated by law. In fact, Article 603(2) of the Civil Code requires the testator to manifest his will to the notary in the presence of two witnesses, without the presence of outsiders.
The case at hand
In the case that came before the court of legitimacy, the testatrix, although a beneficiary of a support administration, had been deemedcapable of understanding. Nevertheless, at the time of the drafting of the public will, the support administrator was also present, on the basis of a decree of the tutelary judge authorising the administrator's assistance in the drafting of the will. According to the Supreme Court, this authorisation measure could not affect the mandatory forms prescribed by law for public wills.
The Court of Cassation reiterates that the support administration, introduced to protect the person with the least possible sacrifice of his or her self-determination, does not entail per se the inability to test. The beneficiary retains the capacity to perform the most personal acts, unless the tutelary judge, by specific and reasoned decision adopted pursuant to Article 411(4) of the Civil Code, orders an express limitation of the capacity to test. In the absence of such a limitation, the testament remains permitted, but must be made by the testator in full autonomy.
