Ordinanza: Corte di Cassazione n. 25855 del 27.9.2026
When a will is challenged on the ground that the person who made it lacked mental capacity, the question is often who has to prove what, and about which moment in time. A recent order of the Italian Court of Cassation addresses this directly and should be of interest to families, executors and advisers dealing with Italian wills, including international clients with property or assets in Italy.
In this case, the Claimant asked the Court of Milan to annul a handwritten (holograph) will made in 2001, on the ground that the testator lacked mental capacity when she made it. The beneficiary of this 2001 Will was the testator’s nephew. The Claimant asked the court to confirm that, under an earlier holograph will made in 1995 by the testator, he was entitled to half of her estate, including a share in an apartment.
The first-instance court and the Court of Appeal of Milan both ruled in the Claimant’s favour and upheld the 1995 Will. The key evidence produced by the Claimant was a medical certificate issued a few days after the will was made, written by a psychiatrist at a public facility. The medical certificate recorded senile dementia with significant disorientation in time and space, short-term memory problems, confabulation and delusional ideas of persecution, and a depressed mood. This medical certificate confirming incapacity had been relied on by the nephew in other later proceedings, in which he had sought an order for guardianship on the basis of lack of capcacity (“interdizione“).
The Court of Appeal in this case concluded that the burden of proof had shifted on to the nephew, given the existence of the medical certificate. It was therefore for the nephew, as beneficiary of the most recent 2001 Will, to show that it was indeed made by the testator during a lucid interval. The nephew failed to prove this in the opinion of the Court of Appeal. The nephew appealed against the Court of Appeal judgment but the Court of Cassazione rejected the appeal in full and confirmed the following points of law:
The burden of proof
Where a Claimant can show a stable, permanent condition of incapacity shortly before or shortly after the Will, they no longer need to prove incapacity at the exact moment of signing. The presumption is that the incapacity was present, and the beneficiary must prove there was a lucid interval.
The diagnosis
It did not matter that the certificate recorded “senile dementia” rather than a more specific condition such as Alzheimer’s or vascular encephalopathy. What counted was the documented cognitive decline, recorded shortly after the will by a specialist at a public facility following a clinical examination.
Weight of the evidence
The certificate had been issued for a different purpose, not to assess testamentary capacity. The Court of Appeal was nonetheless entitled to give it more weight than the apparently coherent text of the will. How much weight each piece of evidence deserves is for the trial and appeal courts. If their reasoning is adequate, it cannot be reviewed again by the Corte di Cassazione.
The decision adds to existing case law on incapacity in Italy, and does not change the law, but carries a clear practical message in relation to the burden of proof and the weight of medical evidence. A well-drafted Will may not necessarily outweigh clinical evidence, especially where the Will was handwritten and was not prepared with any professional involvement.
This case also hgighlights the need to make a succession plan in good time, before there are signs of cognitive decline. A contemporaneous medical assessment can be useful protection against a later challenge. Notes of the testator’s reasons, earlier wills and consistent wishes over time can help show that the will reflects a settled intention.
For international families with assets in Italy, two further points arise. Italian succession law, and the rules on challenging a will, often apply to Italian property, but the applicable law depends on the circumstances, including whether or not a choice of a person’s national law hs been made in a Will, or whether Italian law will apply to the succession by default as the deceased was habitually resident in Italy at the time of death.