Inheriting less than expected or discovering that part of the estate has been donated during life can generate doubts and tensions within a family. It is not always a question of bad faith or improprieties, but it is important to know that there are situations in which it is possible to challenge a deed of donation.
Understanding when a donation can be contested and what the steps to follow are can help both those who fear an impairment of the reserved share, and those who wish to protect their estate without creating future problems for the heirs.
Let us look together at the most common cases, the subjects involved and what to do to act in compliance with the law.
When a donation can be challenged: the cases provided by law
Not all donations can be contested. The law provides for specific cases in which it is possible to start a legal action, which concern above all:
- Invalidity of the donation: the deed can be declared null if fundamental requirements are missing, such as the written form by public deed or the presence of two witnesses.
- Defects of the deed of donation: if the donor was not capable of understanding and acting, or if they were induced by deception or coercion, the donation can be annulled.
- Donation impairing the reserved share: if the deed has compromised the minimum share that is due by law to certain heirs (the so-called legitimate heirs), they can challenge the donation after the opening of the succession.
- Revocation of the donation: in some cases (such as serious ingratitude or supervening children) the donor themselves can request the revocation of the donation, if entitled to do so.
Understanding these situations well is the first step to assess whether it is possible to proceed legally.
Who can contest a donation and within what timeframes
Only certain persons have standing to challenge a deed of donation. In particular:
- Legitimate heirs (spouse, children, in their absence the parents) can act if the donation has reduced or annulled their share of inheritance.
- Other heirs or interested subjects can act only in the case of formal or substantive defects of the deed (e.g. donor’s incapacity or absence of the required form).
Timeframes are essential: to contest a donation impairing the reserved share, one has ten years from the opening of the succession. For annulment for defects, the term is five years from the discovery of the defect. In any event, the sooner one acts, the simpler it is to safeguard one’s rights.
How to proceed to challenge a donation effectively
Those who suspect an invalidity of the donation or an impairment of the reserved share should follow a well-defined path. Here are the fundamental steps:
- Verify the documentation: recovering a copy of the deed of donation is essential. Form, date, and whether it was made by public deed and witnesses must be checked.
- Assess the value of the donated assets: to understand whether the residual inheritance respects the rights of the legitimate heirs, it is necessary to calculate the deceased’s entire estate.
- Request legal advice: a lawyer experienced in successions can assess the presence of defects in the deed of donation or any margins for the revocation of the donation.
- Start a legal action if there are grounds: one can proceed with an action for reduction or annulment of the deed, depending on the case.
Acting with calm and awareness is essential: a legal action is not always necessary, but knowing one’s rights makes it possible to avoid hasty or harmful decisions.
