From my time preparing legal opinions I especially remember the phrase that our legal advisor told us: “let's turn the glass over”.
With this, he wanted to tell us that things are not always as they may seem at first glance and, especially, that in any legal matter, depending on how we see them we can reach different conclusions. The correct choice between one or another of the options proposed, through the application of legal rules, is the great professional challenge for all of us who are dedicated to law.
The judgment of capacity is something inherent to any notarial document. If you read any deed from any period, normally on the first page there is a little phrase that says something like this: “In my opinion, you have the legal capacity to grant this deed.”.
What does it mean to have capacity in the judgment of the notary?
The Notary assesses that the person has the capacity to understand and accept the content of the document that he or she signs. People do not come to the Notary to sign, as is hard to imagine, but to acquire rights and assume obligations that result from the documents that are signed.
If a person does not have capacity, he or she cannot sign, as would be the case with minors, or in the increasingly frequent cases of elderly people who, due to dementia or Alzheimer's, who are not even aware of their own lives. And this, regardless of whether or not there is a sentence of incapacity, which is the legal way of depriving a person of capacity.
In private documents, on the contrary, there is no judgment of capacity, but a formula is usually established, of reciprocal recognition of the parties' capacity to contract and bind themselves, saying something similar to “The parties mutually recognize the capacity to contract and bind themselves,” but it is still a very nice phrase, but lacking direct effectiveness.
The judgment of capacity in wills.
In all notarial documents, the judgment of capacity is of utmost importance, but where it is perhaps revealed as most transcendental is in wills, since they are documents granted by only one person (the testator) but which will be effective for others (the heirs).
How is the capacity trial conducted?
There is no rule that determines this, nor is there even a protocol for action. If the Notary has doubts, he can request some kind of complementary opinion from a doctor or the presence of witnesses, which in no case excludes him from his work or exempts him from his responsibility.
However, once the Notary has made a judgment of capacity, there is a presumption of the testator's capacity that can only be destroyed by conclusively proving the absence or lack of mental capacity of the testator at the time of making the will, by anyone who intends to challenge the will.
The capacity trial is a guarantee that the will will not be challenged.
I am going to refer to a specific case that we have had in my office these days. A fully capable elderly person comes to make a will, accompanied by a young person from an Eastern country, who provides him with some kind of assistance in the form of occasional help and company.
As a thank you for the services provided and as an incentive for her to continue providing them, the gentleman decided to make a generous legacy to this person in his will and for this reason he wanted her to be present.
Anyone who follows my blog posts will see that I am not a big fan of using a will as a way of paying for someone's care, especially when the person has enough assets to pay for a professional caregiver, but things are what they are, and it is difficult to change the minds of older people.
The person who received the legacy had many doubts, thinking that the testator's remaining family, some brother, upon learning of the content of the will, would try to challenge it, alleging in a simple way the lack of capacity, which would mean the expense of caring for the testator, and probably no reward.
He came to see me several times after the will, which we do not know if it will be the last, thinking of renouncing it (which on the other hand cannot be done while alive) but in the end he left with the idea that the will, having carefully assessed his capacity by the Notary, will be his guarantee against claims from others.
