L'incapacità di intendere o di volere nella previsione dell'art. 591, secondo comma, n. 3, cod. civ.

The research concerns the so-called natural incapacity to make a will. Although it is a classical figure of civil law, it retains an unparalleled relevance, due to the inherent need for protection in practice and the different sensitivities that, over time, influence the interpretations of scholars and practitioners. The aim is to determine which is the best exegesis with respect to the provision of Article 591, paragraph 2, no. 3, of the Civil Code, highlighting and weighing the systematic and empirical, substantive and procedural, immediate or collateral critical issues that characterize this type of case. The work concludes with a review of the various solutions that have been proposed over time to protect the will of the testator. In light of the changing social and value framework, the aspects that must be considered to understand where and to what extent it is appropriate to intervene through interpretation or legislation are numerous. The conviction reached—also thanks to comparative analysis with the different legal and value-oriented perspective of the Spanish legal system—is that an approach must be adopted that is tailored to the will and that enhances the capacity. Protection should be ensured in two different ways: by supporting and respecting what has been expressed, in cases where the person is able to convey a conscious will; and by broadening the interpretation regarding defects of consent, taking into account the testator’s condition of fragility, in cases where external influences may have conditioned the decision.