The Ascertainment of Contractual Incapacity or Testamentary Incapacity in France, Italy, Austria and Germany Die Feststellung der Geschäfts- beziehungsweise Testier(un)fähigkeit: Frankreich, Italien, Österreich, Deutschland

The core requirement in exercising the capacity to make a legally relevant statement to enter into a contract, and similarly to make a will that can be given effect, is the free will of the parties involved. In particular, the following points are of a practical relevance with respect to the regulation of the contractual capacity or testamentary capacity of adults according to the aforementioned legal systems: – Full contractual capacity or testamentary capacity are the rule and are deemed to be present, whereas the respective lack of such capacity is the exception. – Due to this fact, the person claiming contractual incapacity or testamentary incapacity bears the objective burden of proof. – If the respective proof cannot be evidenced, there is an assumption of contractual capacity or testamentary capacity. A lowering of the threshold for contractual capacity or testamentary capacity is not appropriate to adapt legal regulation to the specific changes required by modern society. The final objective has to be the safeguarding of actual (»substantive«) private autonomy. The declaration by a person who no longer has the capacity to make decisions should not lead to a (permanent) legal effect. In contrast, it has to be asked whether the requirements for the establishment of contractual or testamentary incapacity are overstrained by legal practice. The courts reacted to the emerging problems as regards the production of evidence via a facilitation of proof: The lack of capacity to contract prior to, and after the carrying out of, the legal transaction is seen as prima facie evidence that it has not been present in the course of carrying out the legal transaction, provided that the affliction does not vary continuously. In this respect, the proof of a reasonable possibility of a lucid moment may be sufficient to undermine the prima facie evidence. In addition, a clarifying rule following the French role model in respect to post-mortal safeguarding of secrecy seems appropriate, since it may be problematic with respect to the questioning of doctors, notaries or lawyers or, for example, in case of the necessity of examining medical records. Further facilitations of proof could also be present with respect to an appropriate appreciation of the declaration of the authenticating official, the declaration of doctors who are present as witnesses during the drafting of a will in a hospital, or the personal circumstances of the subject, such as the court order of a »protective measure«, confinement in a psychiatric hospital or suchlike.