ARGENTINA Trends and Developments Contributed by: Herberto Robinson and Micaela Cagnoli, McEWAN
they express their genuine last wishes. However, what occurs when the testator writes the will by hand? In this case, no one can confirm the testa - tor’s capacity or ensure that the will was made freely and without coercion. What happens when the testator makes a will while in a hospital? Is this factor sufficient to invalidate it? Not really, as the mere fact of being hospitalised in an institution does not merit chal - lenging the validity of an act. To do so, it is nec - essary to analyse the general condition of the testator. An interdisciplinary assessment of the patient must be executed prior to granting the act per se. If, after this assessment, the medical doctors decide that the patient is conscious and their autonomy of will is not affected, the notary could attest that the person is fully capable of making a will. The age of the patient – combined with an illness for which drugs, morphine, or anaesthesia must be administered – weakens the patient’s general state and psychic functions, thus substantially reducing their capacity to reason, understand, and express their will. Under this state, the tes - tator could be influenced to make the will in the way that they do. The term “vulnerable testator” is commonly used in Spain to describe a situation where an elderly person may be influenced to create a will that is not entirely their own or a true reflection of their intentions. This does not necessarily imply that the testator lacks the mental capacity to make a will; rather, owing to their age and condition, they may be susceptible to influences that compro - mise their freedom and autonomy when making the decision.
For this reason, the Code of Civil Laws of Cata- lonia, Section 412, subsection 5 establishes that they are incapable of creating a succession unless the following situations are configured: “Natural or legal persons and the caregivers who depend on them who have provided assistance, residential or similar services to the deceased under a contract may only be favoured in the succession of this if it is ordered in an open notarial will or a succession agreement.” That is to say, testators who wish to favour pro - fessional caretakers or the persons in charge or employees of the care centres where they are admitted must necessarily resort to a notarial will. This way, the notary will attest to the testa - tor’s capacity and their own will. Undue influence Under common law, “undue influence” refers to the excessive pressure that one person exerts on a testator, leading them to create a will that differs from what they would have chosen if such strong influence had not been present. This sit - uation typically arises in relationships built on trust with the testator, such as those involving a friend, neighbour, partner, or caretaker (exclud - ing relatives). This makes it different from tes - tamentary fraud, as no physical or mental will is exercised, nor has fraud in the inducement been provoked. According to Madoff, there are four elements that American case law takes into account to determine undue influence: • a relationship of trust between the testator and the person who allegedly exerts the influ - ence; • the person being relied on has been involved in the making or drafting of the will;
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