When a succession is opened, it can happen that the wishes expressed in the will do not respect the limits imposed by law. Some heirs, although entitled to a minimum share of the inheritance, are excluded or receive less than what is due to them. In such cases it is possible to act legally through the azione di riduzione testamentaria.
This guide answers in a clear and direct way the most common questions on this tool provided for by our legal system.
What is the azione di riduzione and when can it be brought?
The azione di riduzione testamentaria allows legitimate heirs to obtain a limitation of the dispositions contained in the will when these impair the reserved share of the inheritance provided by law.
Our legal system establishes that certain subjects, such as children, spouse and, in their absence, parents, cannot be entirely excluded from the inheritance. To them is due a fixed portion, called reserved share. If the testator disposes of their assets exceeding the disposable share, we speak of impairment of the reserved share, and the excessive dispositions can be reduced.
Who can challenge a will that impairs the reserved share?
Only those who have the status of legitimate heir can challenge a will in order to obtain the reduction of testamentary dispositions. Not all heirs, therefore, can avail themselves of this action: only those whom the law recognises as deserving special protection.
The typical case is that of a child who finds themselves excluded from the will, or receives a bequest much lower than what would be due to them under intestate succession. The surviving spouse can also act, as can the parent in the case where there are no children.
What are the limits the law imposes on the testator?
To understand whether one can act, it is necessary to know what the law provides on the will in terms of limits. The disposable share, that which the testator can freely allocate, depends on the composition of the family unit. For example, if there are two children, the reserved share represents two thirds of the inheritance, while only one third is disposable.
Every will that exceeds these limits can be subject to reduction. For this reason it is always advisable to assess with care the testamentary dispositions, also at the drafting stage, in order to avoid future disputes.
Within what time is it possible to act?
The time limit for exercising the azione di riduzione testamentaria is ten years from the opening of the succession, that is, from the date of the testator’s death. It is a prescription term, so once this period has expired the action can no longer be brought.
It is always advisable not to wait too long: in the meantime the assets could be transferred, sold or subject to other constraints. Timely analysis makes it possible to protect more effectively the rights of legitimate heirs.
What happens if the action is successful?
If the judge finds that the testamentary dispositions have violated the reserved share, they order the reduction of testamentary dispositions and the rebalancing of the succession. The effects can be various: restitution of assets, modification of beneficiaries or economic compensation between the heirs.
In some cases, in addition to the will, it is also possible to contest any donations made during life by the deceased that have compromised the reserved shares of the inheritance.
Is a lawyer needed to safeguard one’s rights?
Although it is not always mandatory, the assistance of a lawyer with experience in succession matters is highly recommended. Each case has particular nuances: it is necessary to assess documents carefully, reconstruct the estate, estimate the value of the dispositions and consider any prior donations.
For those who find themselves managing a situation of conflict between heirs or intend to draw up a will respectful of the rules, relying on professionals of the sector represents a choice of seriousness and protection.
Sometimes, a targeted opinion can prevent disputes or offer faster and more advantageous solutions for all parties involved. For this reason, those who wish greater clarity or concrete support can rely on the experience of legal practices specialised in family and succession matters, such as that of Studio Legale Internazionale Boschetti.
