Challenging a will for breach of the forced share: 800,000 euros recovered for the heirs

A seventy-two-year-old construction entrepreneur, deceased in Verona, married for fifteen years in a second marriage to a fifty-five-year-old woman. From the first marriage, which ended in divorce twenty years earlier, two children were born, now in their forties, with whom the deceased maintained intermittent relations after the separation. The second wife has two children of her own from a previous relationship, not adopted by the deceased.

The deceased’s estate at the time of death comprises:

• A villa in Verona, the marital residence, with an estimated value of 950,000 euros
• An apartment in Jesolo, purchased during the second marriage, with a value of 350,000 euros
• The sole-proprietorship construction business with equipment, receivables and goodwill for an overall estimated value of 800,000 euros
• Current accounts and financial investments of about 280,000 euros
• A car of value and other movable assets for about 70,000 euros

The holographic will, drawn up three years before death, contains the following provisions:

• Villa in Verona to the second wife in full ownership
• Apartment in Jesolo to the second wife in full ownership
• Construction business to the second wife with a request to “give work” to her two children
• Current accounts and investments to the second wife
• Bequest of 20,000 euros each to the two children of the first marriage, with the reasoning that they “have already received enough from their mother”

The two children approached our Firm after understanding, through an initial consultation with another professional, that the will breaches their rights as forced heirs but without having a clear indication of the strategy to adopt and of the real prospects of recovery.

The Firm would adopt a strategy structured in two phases: a first phase of rigorous reconstruction of the estate and quantification of the breach of the forced share, and a second phase of opening a structured negotiation with the other party, keeping the legal action as a concrete and documented option.

1. Asset reconstruction and appraisals

• Instruction of an accountant specialised in company valuations for the estimate of the sole-proprietorship construction business of the de cuius: analysis of the economic results of the last financial years, valuation of goodwill with the income method and estimate of the operating assets and ongoing receivables. The resulting appraisal value, about 780,000 euros, represents a technically defensible basis that is nonetheless compatible with possible margins for negotiation.
• Independent property appraisal on the villa in Verona and on the apartment in Jesolo, with determination of the market value on the basis of verifiable comparable properties and technical documentation usable also in court.
• Legal analysis of the marital property regime: the apartment in Jesolo was purchased during the second marriage under the legal community of assets regime. It follows that the deceased owned only a 50% share of it, while the other half belongs directly to the surviving spouse. This element reduces the size of the relictum but constitutes an objective legal fact that the Firm incorporates from the outset into the reconstruction of the estate.
• In-depth bank investigation: acquisition and analysis of the account statements relating to the years preceding death, reconstruction of the financial flows and identification of asset attributions qualifiable as indirect gifts for an overall value of about 280,000 euros (transfers not attributable to the contribution to family expenses, payment of renovations on a property registered to the wife and purchase of a car registered to her).

2. Formal notice and opening of the negotiation

• Sending a formal notice to the surviving spouse, containing the detailed quantification of the breach of the forced share and supported by the appraisal documentation and by the reconstruction of the asset attributions made during the lifetime of the de cuius.
• The communication provides for a deadline for the amicable settlement of the dispute, with the indication that, in the absence of agreement, the action for reduction pursuant to artt. 553 and following of the civil code will be brought, with a possible request for the return of the assets subject to the harmful attribution or of their equivalent.
• The formal notice has a dual function: on the one hand it highlights to the other party the solidity of the asset reconstruction and of the legal strategy prepared; on the other it allows a formal channel of dialogue to be opened, which until that moment could not be established directly.

3. Mediation and negotiation

• Initiation of the mediation procedure pursuant to D.Lgs. 28/2010, this being a succession dispute for which mediation is a condition for bringing any legal action.
• Conduct of four mediation meetings over about three months, during which the parties explore possible settlement solutions.
• Negotiation strategy based on selective and technically motivated concessions: recognition of the legal community over the apartment in Jesolo, reduction of the claim on some minor bank operations and openness to revising the value of the business within a reasonable range between the opposing valuations.
• Proposal of a structured settlement agreement, articulated in the following points:
  • the villa in Verona remains at the disposal of the surviving spouse, who has established her residence there;
  • the apartment in Jesolo is put up for sale on the market, with distribution of the proceeds: 50% to the spouse as community share and 50% attributed to the estate;
  • the construction business is attributed to the spouse, who was already handling its operational management, with a financial equalisation determined on the basis of an agreed value of 700,000 euros;
  • payment to the two children of an overall equalisation of 800,000 euros, that is, 400,000 euros each, in settlement of the claims connected to the forced-share rights, using the proceeds of the sale of the property and payment in instalments of the remaining part.

4. Formalisation of the agreement

• Drafting of the settlement agreement within the mediation procedure, with signing of the minutes by the parties and their respective counsel and consequent effect as an enforceable title pursuant to art. 12 of D.Lgs. 28/2010.
• Provision of guarantees to secure the payment in instalments, through registration of a mortgage on the villa in Verona to secure the residual instalments, with cancellation upon full settlement of the debt.
• Clause of mutual waiver of further succession claims, aimed at definitively stabilising the asset relationships between the parties in relation to the succession.
• Coordination with the notary for the property formalities, including the transfers and any deeds necessary to give effect to the agreements relating to the properties.

“Reading our father’s will was a very harsh blow: not because of the money, but because of the message. Twenty thousand euros each on an estate of millions. As if to say: you do not exist. The first lawyer we consulted told us we were right but that the case would last years and that he was not sure of anything. We wanted justice, but we did not want to spend five years in court. The Firm took a different approach: it reconstructed the whole estate with a precision that left the other party no argument to contest, and then it negotiated an agreement that gave us what we were owed without the war everyone had predicted. Four hundred thousand euros each, in ten months. What struck us most is that they also found the gifts our father had made during his lifetime to his wife, which we did not know about: without that reconstruction, we would have recovered much less.”