When a succession with a will is opened, it can happen that one or more heirs realise that they have been excluded or penalised in the dispositions left by the deceased. In such cases it is natural to wonder whether the will is valid and what the heir can do to safeguard their rights.
Italian law recognises specific protection to certain family members, called legitimate heirs, to whom a share of the inheritance is due by law, even against the wishes expressed in the will. If this share is violated, we speak of a will impairing the reserved share.
Who the legitimate heirs are and what the law guarantees
Italian law identifies as legitimate heirs the spouse, the children (including adopted children) and, in the absence of children, the parents. To each of these subjects a minimum share of the inheritance is reserved, called reserved share.
This rule applies both in the presence of testamentary succession, and in situations in which the will is drawn up in favour of third parties, excluding the closest family members. In such cases an impairment of the reserved share can occur, which gives the right to take legal action to obtain what is due.
Example: if a father leaves his entire estate to a single child, excluding the others, the latter, if legitimate heirs, can contest the will.
How to recognise a will impairing the reserved share
Understanding whether one is faced with a will impairing the reserved share requires an analysis of the overall estate and of the testamentary dispositions. It is not enough to be excluded from the will to take action: it is necessary to verify whether one’s reserved share has effectively been violated.
The fundamental steps are:
- Reconstruct the entire value of the inheritance, including any donations made during life
- Compare the dispositions of the will with the shares provided for the legitimate heirs
- Verify whether one’s share has been respected or reduced below the legal minimum
Only after these assessments will it be possible to decide whether to start a legal action.
What the heir can do in the case of a will that impairs
If an impairment of the reserved share is ascertained, the heir can act through the azione di riduzione. This is a tool provided by the codice civile to restore inheritance balance and to ensure the rights of legitimate heirs.
The azione di riduzione can be exercised against:
- those who have received assets in excess of the disposable share
- donees who have benefited from transfers during life
- other heirs who appear to be disproportionately favoured
It is important to know that the action must be brought within 10 years from the opening of the succession.
In some cases, it may also be necessary to challenge a will for formal defects or because drawn up in invalid conditions (for example, in the presence of incapacity or undue pressures).
How to act correctly to protect one’s rights
When an impairment of the reserved share is suspected, it is essential to act methodically and without rushing. Each succession and reserved share has its own particularities, and before starting a legal action it is always advisable to gather all the elements useful for an accurate assessment.
Here are some practical tips:
- Turn to a lawyer experienced in successions for an initial analysis of the case
- Verify with precision the content of the will and any donations made during life
- Avoid informal agreements between heirs without a legal assessment
- Act within the timeframes provided by law, avoiding prescription
Frequently asked questions on the reserved share and challenging the will
Can an heir be entirely excluded from the will? Yes, but in this case it is possible to act to obtain the share provided by law.
Is the will valid even if it violates the reserved share? Yes, but it can be reduced in the part that exceeds, in order to restore the rights of the impaired heirs.
Is a notary needed to start the azione di riduzione? No, it is a judicial action that is brought through a lawyer.
What happens if many years have passed since the opening of the succession? If more than 10 years have passed, the right to the azione di riduzione may have prescribed. Facing a succession with a will that seems to ignore the rights of the legitimate heirs can create uncertainty and unease. But Italian law offers precise tools of protection for those who have received less than what is due to them.
In situations such as these, relying on a professional experienced in succession matters can help to clarify one’s rights and decide how to act, with balance and awareness. Studio Legale Internazionale Boschetti assists with confidentiality those who wish to safeguard their inheritance interests in compliance with the rules and with the family’s wishes.
