The burden of proving the incapacity to contract or to testify lies with the person who requests the nullity of the act.
Even though the death of a loved one can be difficult to bear, it can become even more so if that person disinherits you.
A 55-year-old man enters into wedlock. Before the marriage, the future spouses sign a marriage contract in which they make a mutual donation of all their assets in the event of death. The future spouses reserve their express rights to revoke the donation by will.
Fifteen years go by. The husband, then suffering from a bilateral cerebral hemorrhage, is hospitalized. Upon his release, he hastens to draft his will. He appoints his wife as universal legatee, but bequeaths specifically to his new flame all his funds deposited at the credit union. In reality, the funds he bequeaths specifically constitute the majority of his estate. In the months that follow, his condition deteriorates and he passes away at the age of 72.
Feeling aggrieved, the wife approaches the Court and requests the annulment of the will due to incapacity. The Court of Appeal* clearly states that the burden of proving incapacity to contract or execute a will rests with the party seeking the nullity of the act since every person is presumed to be of sound mind. However, if this capacity is seriously called into question by "apparent" evidence, the burden of proof is shifted. Therefore, the person supporting the legal act is obliged to establish that the testator had the required capacity at the time of executing the will. The Court thus dismisses the wife's claims and concludes that the testator was of sound mind when he bequeathed his funds to his new flame.
In principle, the freedom to make a will is fundamental in our society. If one does not inherit from a person they greatly appreciate, it is surely not due to a lack of love, but simply an oversight on their part.
* C.A. 200-09-000567-922, 1997-11-21
