Freedom of testament and active testamentifaction of persons with disabilities

Abstract

The change of model implied by the 2006 New York Convention on the Rights of Persons with Disabilities is reflected in our legislation through Law 8/2021. Legal capacity is recognized for all persons, in its twofold aspect, static (capacity to hold rights) and dynamic (capacity to exercise them). It moves from a system of substitution to one of support, giving priority to the will, wishes and preferences of the person. Incapacitation disappears, with the decision and responsibility as to whether a person has the necessary capacity to testate falling exclusively on the Notary, following a judgement of discernment. The notary is the key support for the exercise of legal capacity to testate, enabling not only the expression of the testator's will but also the shaping of it, supporting the testator in the decision-making process, support which, moreover, he has always provided, albeit now with greater emphasis. Autonomy, the freedom to testament is strengthened.