Will in Italy

Before analysing in detail the various hypotheses of contestation of the will, it is important to examine the general rules that govern this type of procedure. These rules apply both to holographic wills and to public ones.

As is known, the will is a “mortis causa” deed, with which a person (the testator) establishes the destination of their patrimony, in whole or in part, after their death. Such deed produces effects only after the death of the testator, and therefore can be contested only after their death.

To contest the will the lawyers of our Studio will turn to the competent Tribunale in collegial form, of the place where the succession was opened, drafting a writ of summons.

Before proceeding with the contestation before the Tribunale, it is necessary to start a mediation procedure with a specific organisation, since the law provides for mandatory mediation in matters of succession. Boschetti Studio Legale will demonstrate that it has validly attempted mediation, in order to avoid the application being declared inadmissible and the judge closing the proceeding unfavourably for those who have promoted the contestation.

If you are wondering when it is possible to contest the will, the will can be contested if it presents formal or substantial defects. The rules on substantial defects, that is to say those relating to content, are identical for holographic and public wills.

Substantial defects can cause the nullity or annullability of the will.

A void will does not produce effects, while an annullable will is valid until it is annulled, an important distinction for the protection of third parties who might have purchased assets from an heir appointed through a flawed will.

The most serious cases are undoubtedly those that determine the nullity of the will. A will can be void in various cases, including:

• Lack of will of the testator, as when the testator by error identifies as heir Tizio instead of Caio.
• Violation of the prohibition of inheritance pacts, for example if Tizio has designated Caio heir to respect a previous agreement, which would render void both the pact and the testamentary provision.
• Exclusion of forced heirs or of heirs in the division of the patrimony, as when Tizio appoints heirs Gianni, Giuseppa and Angelica, but then divides the assets only between Gianni and Angelica.
• Provisions in favour of persons in a position to influence the testator, such as a guardian or the notary who drafted the will.

In these cases, the will can be contested to have the nullity declared.

However, based on the principle of conservation of the will, the invalidity of a clause does not necessarily imply the nullity of the entire will; the importance of the clause must be assessed case by case and we at Boschetti Studio Legale can carefully conduct these analyses.

What are instead the hypotheses of annullability of the will?

The most frequent hypotheses of annullability concern wills drafted by persons incapable of understanding and intending at the moment of writing. In this case, those who contest the will must demonstrate the incapacity of the testator, often a complex matter. It can be useful to present medical documentation that attests to mental illnesses or conditions that have influenced the capacity of the testator, such as senile dementia or stroke.

A will can also be annulled if free and conscious will on the part of the testator is missing. The Codice civile provides that the will is annullable if the will has been flawed by error, violence or fraud:

• Error: the testator makes a provision based on a false assumption, for example if they leave an asset to Sempronio thinking that they are a good student, when in reality they are not.
• Violence: the testator disposes of their assets under threat, for example if they institute Mevio as heir for fear of retaliation.
• Fraud: the testator is deceived by someone who benefits from the will.

In all these cases, if the defect of the will can be demonstrated, the will can be annulled.

Do you want to know if you are entitled to contest the will? You should know that anyone who has a legitimate interest, that is to say a right on the inheritance, can contest a will, whether public or holographic.

The terms for contesting vary based on the seriousness of the defects. If the will is void, the action is imprescriptible, that is to say there is no time limit. If instead the will is only annullable, the term to contest it is 5 years.

The law establishes that a holographic will is invalid every time one of the formal requirements provided for is missing, namely the writing in one’s own hand, the date, the subscription.

The most common defects concern the lack of autograph and of subscription. These defects are considered serious because the aforementioned requirements allow identifying the authorship of the holographic will. By itself, even the sole lack of autograph writing will entail the impossibility of attributing with certainty the will to the testator.

Even though one tends to think that a public will drafted by a notary is unassailable, it can be contested. The main reasons for contestation include:

• Incapacity of the testator: for example, if the notary collects the wishes of a person under the effect of strong sedatives that alter their lucidity. The notary is not required to verify the state of health of the testator, so the burden of demonstrating incapacity falls on those who contest the will.
• False public will: If the notary drafts a will that does not reflect the will of the testator, it will be necessary to start a complaint of falsity to annul its effects.
• Defects of the will: such as fraud, violence or error.
• Formal errors: for example, the absence of witnesses or the lack of subscription.

When dealing with successions, the advice of a lawyer experienced in testamentary law is essential to avoid future problems. Drafting a will without the right assistance can entail the risk of formal or substantial errors, which could compromise the validity of the document and give rise to disputes among heirs.

A lawyer for the drafting of the will can:

• Ensure that the will respects all Italian and international regulations.
• Provide advice on how to protect the rights of heirs and loved ones.
• Help to plan the division of the patrimony in an equitable way and compliant with the laws.

For a foreigner residing in Italy, the risk of misunderstandings with local laws is even higher. Boschetti Studio Legale, thanks to its vast experience in matters of international successions, ensures 360-degree legal assistance, helping clients to prevent legal disputes and protect their interests and those of their loved ones.

The will, once drafted, can be kept in various modalities depending on the type chosen:

• In the case of the public will, the document is kept by the notary until the death of the testator. In this way, its integrity and validity are ensured.

• In the case of a holographic will, there is no obligation of deposit with a notary, but it is advisable that it be delivered to a person of trust or to a lawyer. This avoids that the document may be lost or destroyed.

• The secret will, finally, is sealed and delivered to the notary, who keeps it until the opening of the succession.

Boschetti Studio Legale offers advice also in the phase subsequent to the drafting of the will, helping its clients to choose the most secure modality of custody to ensure that their wishes are respected.