Capacidad para otorgar testamento, legitimarios y protección de la persona con discapacidad

This paper is about the new rules for the protection of persons with disabilities with particular regard, on the one hand, to the capacity to make a will and, on the other hand, to the protection of legitimate beneficiaries. Assuming that the will, although a patrimonial act, has an existential relevance, the new rules on the capacity to make a will are analysed, considering both the new general rule, which no longer requires the person to be in his or her «cabal juicio», but to be able to «conform or express his or her will», and that of the will of the person with a disability, which no longer requires the notary to assess the two doctor, and finally, the new formalities prescribed for the open and closed will. From a different point of view, the paper analyses the new rules on the protection of legitimate beneficiaries, paying specific attention to the case where there is a disabled person among the descendants. The legislature, by significantly modifying the rules, makes it possible to depart from the strictness of the existing rules, providing for the possibility of the descendant with a disability being the beneficiary of the entire legitimate share, which remains, however, encumbered by a de residuo fideicommissum in favour of the other legitimaries. Lastly, we analyze the new rule on the voluntary or supplementary establishment of the right of habitation in the family home in favor of the descendant with a disability.