ARGENTINA Trends and Developments Contributed by: Herberto Robinson and Micaela Cagnoli, McEWAN
• the testator was vulnerable to undue influ - ence and, by this, their age and mental and physical conditions are taken into considera - tion; • the testator makes some “unnatural” attribu - tion in favour of the trusted person, so that the more unexpected the testamentary attri - bution is, the greater the likelihood of undue influence. As with the vulnerable testator, undue influence does not necessarily presume the lack of natural capacity of the testator because – if such is the case – the will will be held completely unenforce - able. However, as there is no legally established legitimacy in the United States, the testator could distribute their assets as they wish. So, if the theory of undue influence was commonly applied (thereby invalidating the will), the testa - tor’s ability to express their will would be limited and therefore the freedom to make a will would be curtailed. In this dubious situation, judicial precedents in Spain reflect that if the will is granted to a legiti - mate heir, even if it goes against equal distribu - tion, the court will not determine the testator’s lack of capacity or undue influence. On the other hand, when the beneficiary is not a legitimate heir, there is a higher chance of influence; even so, courts usually declare them valid. In conclu - sion, unlike in the United States, the annulment of the will based exclusively on the deceit or dis - tortion of the will of the vulnerable testator is not applied. The freedom to make a will prevails, as opposed to undue influence. In cases of nullity or a contested will, American law is inclined to be more prone to maintaining
assets within the family, whereas European law values the autonomy of the will. Solutions This article briefly discusses the complexity of restrictions on individuals’ capacity and the lim - ited solutions available to professionals, includ - ing lawyers and public notaries. The above- mentioned can vary significantly and may even contradict one another. This presents a consid - erable challenge, highlighting one of the primary issues that must be addressed in family law at an inter-jurisdictional level. In the meantime, and as effective as it may be under these circumstances, the best alternative is to be one step ahead and conduct estate plan - ning in advance so as to avoid future inconven - iences for relatives and future generations. By way of example, effective planning might involve granting powers of attorney to trusted relatives or individuals who can carry out a per - son’s wishes in the event that the person is una - ble to do so. Granting powers of attorney for use during the grantor’s lifetime is commonly prac - tised in situations involving degenerative mental illness. The appointed agent can manage and oversee the grantor’s assets when the grantor has limited capacity and cannot freely manage their own affairs. Alternatively, advance directives may be issued – through which, a person can define their wishes in all aspects not involving their valuable assets. Examples of such wishes include: • how they want to spend their final days; • if they want to reject invasive treatments; or • if they prefer to receive medical care at home.
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