Àmbito semantico della parola “dolo” nell’impugnazione del testamento

The search for the meaning to be attributed to the word ‘malice’ in the will contest makes it necessary to ascertain whether, and to what extent, the rules dictated for contractual malice are applicable to testamentary malice. The negative solution – also with regard to analogical interpretation, which is also abstractly permissible – derives from the fact that testamentary malice has been regulated to protect interests other than those targeted by reference to contractual intent. The lawmaker assigned prominence, in ascertaining the malice causing the annulment of the will, to the extraneousness of the disposition from that which the de cuius would have crafted had he or she had a correct perception of reality: with the primary purpose of protecting the purity of the testamentary will, and in the absence of a counterparty who could claim reliance, Article 624, para. 1 of the Italian Civil Code allows for the annulment of the disposition, which simply depended on a misrepresentation of the facts induced by the disruptive action of others even in the absence of a machination, without providing for afflictive consequences and maintaining in the hands of the called upon person the possibility of intestacy succession or succession by virtue of a different will. For the purposes of contesting a will on the grounds of malice, then, it is necessary to have regard not only to deception and artifice, but also to reticence and lying, even to advice and solicitation. On the other hand, malice apt to annul the will does not necessarily constitute a cause for unworthiness, since Article 463, no. 4) of the Italian Civil Code – which, unlike Article 624 of the Civil Code, determines an afflictive consequence, excluding the person called from the succession – postulates in the deceptor a responsibility, which follows from the fraudulent activity through which he or she directed the testator. The demeanor that induces the misrepresentation in the testator is ascertained, as a rule, with the help of presumptive elements, evaluated in light of all relevant circumstances, including the age and psychophysical condition of the testator. Presumptive reasoning, however, cannot go so far as to result in an inversion of the burden of proof, forcing the devisee to prove that the attribution is not to be attributed to an artificially misdirected volition: such an inversion would not only be without normative support, but, on the one hand, would lead to the demand for proof of a negative fact; on the other hand, it would inevitably affect the testamentary freedom