The discipline of the Holographic Will under Italian Law

The discipline of the Holographic Will under Italian Law

The Holographic Will and Its Invalidity
A comprehensive examination of the guided hand phenomenon in holographic wills.

What is a Guided Hand in a Holographic Will?
A holographic will must be entirely handwritten, dated, and signed by the testator, as stipulated by Article 602 of the Italian Civil Code. This type of will does not require witnesses or the presence of a public official.

Key Requirements:

  1. Autography: The testator must write the will personally.
  2. Date: The will must include the day, month, and year.
  3. Signature: The testator must sign the will at the end of the document.

Grounds for Invalidity:
Under Article 606, a holographic will is null if it lacks the complete autography or the testator’s signature. A missing date renders the will voidable, not null. Autography means the testator must consciously write the document themselves. Therefore, a will written with mechanical aids or dictated by another person, without the testator’s clear understanding, is invalid.

The Phenomenon of Guided Hand (or Forced Hand):
This occurs when a third party physically aids or forces the testator’s hand in writing the will. Situations include supporting a hand impaired by illness, or coercing a testator into writing against their will. French criminologist Edmond Locard distinguished between “guided hand” (physical assistance) and “forced hand” (coercion). The guided hand shows the dominant influence of the guide, while the forced hand exhibits irregularities, ink stagnation, and pressure inconsistencies.

Jurisprudential Perspectives:
Courts have ruled that if a third party guides or supports the testator’s hand, the will’s autography is compromised, rendering it invalid, regardless of the testator’s intent being accurately represented (Cass. civ. n. 5505/2017). This contrasts with earlier rulings allowing minor assistance (Cass. civ. n. 32/1992).

What to Do if the Testator Cannot Write Alone:
If the testator is unable to write, they must resort to a public will, involving a notary, or dictate the will, ensuring they are of sound mind and not under duress.

Role of the Forensic Graphologist:
Forensic graphologists conduct a comparative analysis using contemporary writings of the testator. They utilize technical tools such as Wood’s lamp, multispectral microscopes, magnifying lenses, and measuring instruments to detect the nuances of guided or forced hand.

This exploration highlights the intricate details and legal nuances associated with the validity of holographic wills under Italian law.


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