Action of restitution of the will in Italy

The action of restitution represents a fundamental protection mechanism in Italian inheritance law. It is activated as a direct consequence of the action of reduction, coming into play when a forced heir, that is to say an heir who by law has the right to a share of the inheritance, has seen their rights harmed due to testamentary provisions or donations that exceed the available portion of the patrimony of the deceased. Its primary function is to reintegrate the share of forced heirship, ensuring that the forced heir receives what is due to them by right.

In essence, the action of restitution allows the forced heir to concretely recover the assets that have been the object of harming provisions, whether they are real estate, money or other assets. This action is clearly distinguished from other forms of legal protection, such as the action of vindication, which aims at the recovery of an asset possessed without a valid title. The action of restitution, instead, focuses specifically on the recovery of assets transferred through liberality or will that have violated the rights of forced heirs.

It is fundamental to understand, as already mentioned, that the action of restitution is characterised by its mainly real nature, that is to say its objective is the direct recovery of the assets and not only of their economic equivalent. This distinctive feature separates it from other legal actions, which often limit themselves to providing for compensation in money. There are however regulatory exceptions, as in the case of indirect donations, in which the forced heir is entitled exclusively to the equivalent monetary value.

A lawyer to exercise the action of restitution can turn both against the direct beneficiaries of the harming provisions (donees, heirs or legatees), and against third parties who have subsequently acquired such assets. However, it is important to note that the law introduces specific protections for third-party purchasers, such as the term of twenty years from the transcription of the donation which, once elapsed, can prevent the exercise of the action of restitution against them.

Furthermore, the forced heir has the burden of preventively levying upon the patrimony of the donee, before being able to act against third-party purchasers. These aspects make the action of restitution a powerful, but also complex, instrument, that requires deep knowledge of the regulation and a well-defined legal strategy.

The action of restitution presents itself as an essential instrument to re-establish balance in inheritance rights, but its practical application requires a careful assessment of every individual case.

Boschetti Studio Legale, thanks to its competence in family law and international successions, can provide the legal assistance necessary to manage all the complexities deriving from this action, ensuring the protection of your patrimonial rights.

The action of restitution represents an essential means to ensure the protection of forced heirs whose rights have been compromised by testamentary provisions or donations that exceed the share of patrimony reserved to them by law.

However, in some cases, it is possible to achieve the same result through agreements for the reintegration of the share of forced heirship, which represent an alternative to the judicial path. These agreements are transactions between the forced heir and the beneficiaries of the harming provisions, aimed at reintegrating the share of forced heirship in a concerted way. Boschetti Studio Legale, with its deep knowledge of inheritance law, can assist you in the negotiation of such agreements, ensuring that your rights are fully protected.

It is important to underline that, unlike the action of restitution, which aims at the recovery of assets in kind, the agreements of reintegration can also provide for alternative modalities of reintegration, such as the payment of a sum of money or the transfer of other assets. These agreements are based on the autonomy of the parties and can be more flexible compared to the rigid dynamics of judicial process.

Traditional doctrine admits the possibility that an agreement may substitute the jurisdictional ascertainment of the harm to forced heirship, specifying that such agreements do not have a translative nature and constitute neither transaction nor novation, but are inserted into the succession event modifying it.

However, the identification of the effects of these agreements is controversial. Some maintain that they only have an ascertainment function, while others consider that they may also have translative effects, modifying the transfer of assets. The agreement can be seen as a deed in which the heir “abandons” to the forced heir the share exceeding the available portion, with the effect that the acquisition of the assets occurs by necessary and real effect of the agreement.

It is important to note that according to a different doctrinal approach, the agreement cannot attribute the quality of heir to the omitted forced heir, except through judicial control. According to this thesis, the agreement of reintegration would not directly transfer the assets, but would remove the obstacle to the operability of the legal vocation, with the consequence that the forced heir acquires the quality of heir. Such approach seems preferable, given that it equates the effects of the agreement to the sentence of reduction: ineffectiveness of the harming provision and operability of the vocation ex lege in favour of the forced heir.

From the fiscal point of view, the agreements of reintegration are treated differently from transactions. While the transaction produces translative effects and constitutes the title of acquisition for the forced heir, the agreement of reintegration is a transaction of ascertainment with which the parties achieve a patrimonial result identical to that provided for by the rules on necessary succession. The title of acquisition of the forced heir, in this case, is the law and not the agreement itself.

Finally, it is fundamental to know that the agreements of reintegration, entailing the tacit acceptance of the inheritance, are subject to transcription pursuant to art. 2648 c.c..

The agreements for the reintegration of the share of forced heirship represent a valid instrument to resolve succession disputes more rapidly and efficiently, but their correct application requires a deep knowledge of the regulation and of practice. Boschetti Studio Legale offers specialised advice on the topic of agreements of reintegration, ensuring maximum protection of your interests. Contact us to assess the solution most suited to your specific case.