Contestation of the will for harm to forced heirship in Italy
In the Italian legal system, the protection of forced heirs, that is to say the closest relatives of a deceased person (such as spouse, children and, in their absence, ascendants), is a priority. Italian law reserves to these individuals a portion of the inheritance patrimony, known as “share of forced heirship”, which cannot be affected by donations or testamentary provisions.
However, it can happen that the deceased (“de cuius”) disposes of their patrimony during life or through a will exceeding the limits imposed by law, thus harming the share of forced heirship of their heirs. In these cases, Italian law offers the forced heirs the possibility of undertaking a legal action called “action of reduction“, aimed at re-establishing balance and reintegrating the share of patrimony due to them.
When one succeeds in contesting the will for harm to forced heirship, the testamentary provisions or donations that violate the share of forced heirship are declared ineffective, restoring the patrimony reserved to the forced heirs. It is an inalienable right that can be exercised only after the opening of the succession and within a peremptory term.
Boschetti Studio Legale, specialised in international family and succession law, offers assistance to Italian clients and foreigners residing in Italy who find themselves having to face questions of transnational succession, including disputes relating to harm to forced heirship. Our experience allows us to guide our clients through the complex rules of Italian law, ensuring effective protection of their rights. You can contact us for personalised advice and discover how we can protect your interests.
What can be done in case of harm to forced heirship?
The Italian Codice Civile dedicates an entire section to the protection of forced heirs, that is to say those who, by law, have the right to a minimum share of the inheritance of the deceased. These forced heirs are:
- the spouse;
- the children (including adoptive ones and the descendants of pre-deceased children) and, in the absence of children,
- the ascendants.
Depending on the number and type of forced heirs, the law establishes various reserved shares: for example:
- in the presence of a single child, half of the patrimony is due to them;
- if there are more than one child, the reserved share due to them amounts to two thirds.
- In the absence of children, but in the presence of ascendants, the reserved share amounts to one third of the patrimony.
The spouse, both in case of concurrence with children and with ascendants, is entitled to a reserved share that varies depending on the composition of the family nucleus.
The testator, in drafting the will, has the possibility of freely disposing only of the available share of the patrimony, while they cannot affect the share reserved to the forced heirs. If the testamentary provisions or donations made during life exceed the available share and harm the share of forced heirship, the forced heirs can act in court to restore their rights.
The legal instrument at their disposal is the action of reduction, with which the testamentary provisions or donations harming the share of forced heirship are rendered ineffective. Through the action of reduction, it is possible to render ineffective the testamentary provisions or donations that exceed the available share, reintegrating the share of forced heirship due to the forced heirs.
It must be specified that harm to forced heirship does not determine the nullity of the will. The action of reduction, exercisable in case of harm to the share of forced heirship due to forced heirs, does not in fact aim to invalidate the will completely, therefore one cannot speak of void will, nor of invalidity of the will considered as a whole, but aims to render ineffective only the provisions harming the reserved share. In other words, the will remains valid, but the provisions that exceed the share of which the testator could dispose will be reduced proportionally to reintegrate the harmed share of forced heirship.
Before undertaking the action of reduction, even when the interested party is a person residing abroad, it is important to accept the inheritance with benefit of inventory and to impute any donations or legacies received to one’s share of forced heirship, unless one has been dispensed.
As mentioned, the action of reduction must be initiated within a peremptory term. This term is ten years from the opening of the succession. Once it has elapsed in vain, the right to act in reduction is prescribed.
Fulfilling the burden of proof is fundamental, and this is also where the activity of a law firm for successions with real experience in actions of restitution is substantiated. In fact, while the burden of proof incumbent upon the actor who acts for the ascertainment of the harm to the reserved share is weakened in case the “de cuius” has integrally exhausted their patrimony during life through donations, given that in such cases, the request for reduction can be easily justified, also on the basis of presumptive elements, by the existence of harm to forced heirship (Tribunale di Marsala, sentence n. 632 of 10/09/2024), nevertheless, in general, the burden of proof is very stringent. In essence, the forced heir who proposes the action of reduction has the burden of indicating within what limits their reserved share has been harmed, determining with exactness the value of the inheritance mass, as well as the value of the available share and of the violated share of forced heirship. To this end, the forced heir must allege and prove all the elements necessary to demonstrate the existence and extent of the harm (thus, citing the most recent case law: Tribunale di Napoli, ruling n. 7462 of 29/07/2024)
Boschetti Studio Legale boasts solid experience in the assistance and representation of harmed forced heirs, offering specialised advice in matters of action of reduction and in the complex questions that may arise in case of international successions. Our lawyer for successions ensures maximum professionalism and the due competence to protect the rights and the just recognition of the inheritance claims of the persons who have been harmed by illegitimate testamentary provisions.
When and how to contest the will for harm to forced heirship?
The action of reduction represents the fundamental legal instrument through which forced heirs can protect their succession rights when these are harmed by testamentary provisions or donations that exceed the available share. This action, which as said does not render the holographic will void but aims to invalidate only the provisions that determine the harm to forced heirship, is regulated by articles 553 and following of the Italian Codice Civile.
The prescription term of the action of reduction is ten years, running from the date of opening of the succession, which coincides with the moment of death of the testator. However, for testamentary provisions, the dies a quo (starting day) of the term may be postponed to the moment of acceptance of the inheritance by the beneficiary, since it is only at this moment that the harm to forced heirship becomes concrete and effective. It is fundamental to pay attention to these terms, since once they have elapsed, one definitively loses the possibility of acting for the protection of one’s succession rights.
An essential prerequisite for the exercise of the action of reduction is the acceptance of the inheritance with benefit of inventory. This form of acceptance, regulated by art. 484 of the Codice Civile, constitutes an important patrimonial protection for the heir, since it:
- Keeps separate the patrimony of the deceased from that of the heir
- Limits liability for inheritance debts to the value of the assets received
- Allows clear identification of the assets that compose the inheritance estate
- Facilitates the calculation of the share of forced heirship possibly harmed
The action of reduction follows a peremptory order established by law, which cannot be derogated from: First of all, one proceeds to the reduction of the shares of legitimate heirs in case of ab intestato succession (without will). This passage is necessary when the legitimate succession does not ensure respect for the shares of forced heirship.
Subsequently, one passes to the reduction of testamentary provisions, whether they are institutions of heir or legacies. The reduction takes place proportionally, without distinction between heirs and legatees, unless the testator has established an order of preference.
As the last phase, one proceeds to the reduction of donations, starting from the most recent and going back chronologically up to the most ancient (inverse chronological criterion). This order protects the donations more remote in time, presuming greater stability of consolidated legal relationships.
A practical case can help to understand better: let us consider an Italian citizen residing in Switzerland who donated a property to their daughter in 2015 and subsequently, in their 2023 will, left the entire residual patrimony to the new spouse. In this scenario, the omitted forced heir son (completely excluded) will be able to:
- Accept the inheritance with benefit of inventory
- First contest the will to obtain their share of forced heirship
- If the reduction of the will is not sufficient, proceed to the reduction of the 2015 donation
The complexity of the action of reduction requires deep knowledge not only of Italian inheritance law, but also of the international implications when elements of foreignness are involved. Aspects such as the determination of the applicable law, the calculation of the value of the inheritance estate, the quantification of the harm to forced heirship, the management of procedural problems, require specific competences and particular experience in the sector.
Boschetti Studio Legale, thanks to its team of lawyers specialised in international family and succession law, offers qualified advice and assistance both in the extrajudicial phase and in succession litigation, supporting Italian and foreign clients in the protection of their succession rights.
Typical scenarios / Case studies
The typical scenarios have been developed by combining the most significant family law situations that our firm regularly handles, creating structured and realistic examples designed to help readers better understand and navigate their own legal matters. The case studies, on the other hand, are based on real cases handled by our firm, with all personal data and identifying details anonymised to protect client confidentiality.
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Legal advice for the contestation of the will for harm to forced heirship in Italy
Italian inheritance law also applies to foreigners who reside in Italy or who inherit assets located in Italy. Therefore, even a foreign citizen can suffer harm to forced heirship and find themselves in the need to protect their rights.
Italian rules on succession provide for a series of guarantees to protect forced heirs, regardless of their nationality. However, the complexity of inheritance law, especially in transnational situations, makes the assistance of a lawyer specialised in the matter fundamental.
Boschetti Studio Legale, strong of its team of lawyers with experience in family and succession law, offers advice and legal assistance to foreign citizens who find themselves having to face inheritance questions in Italy.
Here are some examples of cases in which a foreigner might need legal assistance for the contestation of a will for harm to forced heirship:
- A foreign citizen married to an Italian citizen, excluded from the will in favour of other heirs.
- A foreign citizen who has received a donation during life from the deceased, subsequently harmed by testamentary provisions in favour of other beneficiaries.
- A foreign citizen legitimate heir of an Italian citizen who has disposed of their patrimony in favour of entities or associations, harming the share of forced heirship.
In these situations, our law firm can assist the foreign citizen in all phases of the proceeding, from the assessment of the harm to forced heirship to the possible judicial action for the restoration of the share of patrimony due.
The Studio offers, among others, the following services:
- Analysis of the will and of the donations made by the deceased.
- Calculation of the share of forced heirship due to the foreign citizen.
- Assessment of the possibilities of legal action.
- Assistance in the negotiation of extrajudicial agreements.
- Representation in court in case of litigation.
Relying on a lawyer for international inheritance law is fundamental to protect one’s rights and obtain the just recognition of one’s inheritance claims. Boschetti Studio Legale is the ideal partner to successfully address the challenges of Italian inheritance law. You can contact us for personalised advice and discover how we can help you to assert your rights.
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Who can contest a will for harm to forced heirship?
Only forced heirs can contest a will for harm to forced heirship, that is to say the closest relatives of the deceased: spouse, children and, in their absence, ascendants. These figures enjoy special protection by law, which reserves to them a minimum share of the inheritance called share of forced heirship.
What to do in case of harm to forced heirship?
In case of harm to forced heirship, it is necessary to turn to a lawyer specialised in inheritance law to assess the opportunity to act in court with the action of reduction. The action of reduction allows obtaining the reintegration of the harmed share of forced heirship, rendering ineffective the testamentary provisions or donations that have violated it.
How much does a lawyer to contest a will cost?
The cost of a lawyer to contest a will varies based on the complexity of the case, the value of the inheritance and the duration of the process. On average, the figure can start from about 3,500 euros and rise considerably if the case requires expert opinions or other complex procedures. Furthermore, costs for mandatory mediation and legal expenses such as stamps and unified contributions must be considered.
When is the will not contestable?
A will is not contestable when it respects all the rules provided for by law, ensuring the shares reserved to forced heirs and proving valid from the formal and substantial point of view. For example, if the will is drafted correctly, without formal defects or violations of the rights of forced heirs, and there are no errors, fraud or deceit that have altered the will of the testator.
