Pursuant to Article 2179 of the Portuguese Civil Code, a will is “the unilateral and revocable act by which a person disposes, for after their death, of all or part of their assets”.
In other words, a will is a personal and unilateral act by which the testator formally expresses their wishes regarding how they intend to dispose of their assets after their death.
It is therefore necessary to ensure that the will-maker’s intention and freedom are not, at the time the will is made, limited by any circumstance, since, if that is the case, the act performed cannot be regarded as free and informed.
With regard to testamentary capacity, Article 2188 of the Civil Code provides that: “All individuals whom the law does not declare incapable of doing so may make a will”, while Article 2189 of the same Code clarifies that: “The following are incapable of making a will: (a) minors; (b) adults subject to accompaniment measures, but only where the judgment ordering such measures so determines.”
Furthermore, pursuant to Article 2199 of the Civil Code, if the person making the will is, at that time, temporarily incapable of understanding the meaning of the declaration they are making or, for any reason, does not have the free exercise of their will, the will is voidable on account of the testator’s accidental incapacity. This is understandable, since the purpose is to protect the testator themselves, and, in this situation, the requirements of Article 257 of the Civil Code are not required for accidental incapacity to operate as a ground for the annulment of a legal transaction.
If a person whom the law classifies as incapable of making a will does so, that will is an act affected by nullity. If a person whom the law considers capable of making a will does so but, for some reason, is, at the time the will is made, in one of the circumstances provided for in Article 2199 of the Civil Code — namely, accidental incapacity — the will is voidable.
The testator’s incapacity to understand and intend the declaration of intent made in the will does not need to have been recognised by a judgment ordering accompaniment measures for an adult that limits their capacity to make a will. Such a limitation on the capacity to make a will presupposes judicial recognition of a permanent inability to understand the meaning and scope of the declaration contained in the will.
The circumstances provided for in Article 2199 of the Civil Code — accidental incapacity — arise from a merely occasional and temporary cause. Therefore, in order to determine whether the will is voidable, those circumstances must have existed at the time the will was made, and evidence must be provided that they existed at that time. For example, it may be necessary to prove that the testator was suffering from an illness capable of affecting their perception, understanding and judgment, or that, when making the will, the testator was under the influence of chemical substances that affected their ability to understand and exercise their will, preventing them from fully grasping the meaning of the declaration made and the scope of the act performed.
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