When a will is opened, doubts, tensions or actual contestations may emerge. Sometimes the person who expected to be included is not even mentioned, at other times the testator’s intent seems unclear or expressed in questionable circumstances. In these situations, it is normal to wonder when a will can be challenged and how to contest a will in a legitimate and well-founded way.
Understanding one’s rights, and also the limits within which one can act, is essential in order not to act on impulse, to avoid pointless family conflicts and to safeguard assets in compliance with the law.
Who can really challenge a will?
Not everyone involved in a succession has the right to challenge a will. The law allows action only by those who have a direct and concrete interest. But who can challenge a will?
In general terms, the following can contest it:
- the legal heirs (for example children or spouse) whose reserved share is impaired,
- those who have been excluded and consider that the intent expressed in the will is not valid or is the result of undue influence,
- those who were appointed heir in an earlier will, in cases where the latest will is held to be void or voidable.
The conditions for doing so, however, are not always straightforward, and this is where the grounds for annulling a will come into play, as provided by the Civil Code and case law.
In which cases can a will be annulled?
Understanding when a will can be challenged means knowing the main grounds for invalidity or voidability. These can vary depending on the form of the will and the circumstances in which it was drawn up.
Among the most frequent causes we find:
- Incapacity of the testator: the will can be challenged if it is shown that the person, at the time of writing, was not capable of understanding and willing. This is often the case with degenerative pathologies, mental illness or documentable pharmacological influences.
- Violence or fraud: if the testator was forced through threats, deceit or psychological pressure to write the will in a certain way, its annulment can be requested.
- Formal defects: this concerns in particular the validity of the holographic will. To be valid, in fact, a handwritten will must be entirely written by hand, dated and signed. The lack of one of these elements, or the presence of suspicious signatures, may constitute grounds for nullity.
These are only some of the cases in which a will may be subject to contestation. There are also situations in which the content of the will encroaches, in whole or in part, on the share reserved by law for legal heirs, and in such cases reference is made to the “action for reduction”.
When the reserved shares are impaired: what to do
Italian law protects the rights of legal heirs by reserving a share of the estate for them, even where there is a will. This means that, if a testator decides to leave everything to another person or to an entity, the children, the spouse and the parents (if there are no children) can contest the will.
In such cases, the action for reduction can be brought, the purpose of which is to bring the inheritance attribution back within the limits allowed by law. The possibility of acting, however, has specific time limits and requires careful assessment: it is not enough to feel excluded in order to proceed; one must show that one’s reserved share has effectively been impaired.
Knowing the grounds for annulling a will, but also the right path to follow, can avoid wasted time, unnecessary costs and even more complex family situations.
Acting with awareness and with the right tools
When it comes to successions, it is easy for emotions to take over. But before making hasty decisions, it is useful to assess carefully the validity of the holographic will or of any other type of will, taking into account form, circumstances and content.
If you are wondering how to contest a will, or if you feel excluded without a clear reason, it is important to know that the law offers precise tools to safeguard the rights of heirs, but also that each situation must be assessed in its specific context. Sometimes a simple consultation can clarify whether it is worth taking action or not. And when circumstances are more complex, having alongside you someone who knows legal heirs and the will well can make the difference.
In situations as complex as inheritance ones, having alongside you professionals used to handling these passages with discretion and competence can really make the difference. The Family Law Boschetti team accompanies every day those who need to find their way among rules, family wishes and decisions to be taken with clarity and respect.
