Contestation of the will in Italy

Acting promptly is crucial when one can contest a will. If doubts arise about the validity of the document, turning to a law firm specialised in international inheritance law allows assessing the case in detail, with the certainty of respecting all deadlines and formalities provided for by law.

There are various circumstances in which it is advisable to turn to a lawyer to contest a will. The most common situations include:

• the holographic will that does not respect the formal requirements, such as the absence of autograph writing, date or signature;
• defects linked to the will of the testator or situations of undue influence, known as testamentary captation;
• lack of legal or natural capacity of the testator;
• violation of the rights due to the forced heirs;
• errors or ambiguities regarding the beneficiaries or the object of the provisions;
• difficulties in interpreting testamentary wishes, such as the assignment of inheritance or legacies.

Turning to an expert can be fundamental to assess and address these aspects. Qualified legal support is also essential to address cross-border successions, in which different laws may apply to determine the validity or otherwise of a will, as established by EU Regulation n. 650/2012.

The cases of invalidity of a will can fall within the categories of nullity and annullability. Nullity occurs when the will lacks essential elements and, consequently, is devoid of effects.

On the contrary, annullability concerns less serious defects, as in the case of a holographic will lacking date or with an incomplete date.

In the case of annullability of a will, anyone who has an interest can start the legal action within five years from the moment in which the testamentary provisions have been executed.

A will, whether holographic or public, can instead be void for fundamental defects that render it ineffective. The nullity may concern formal aspects, such as when the holographic will is written by a person other than the testator, or substantial aspects, as in the case of succession agreements or reciprocal wills.

The critical issues that emerge most frequently from practice can be summarised as follows:

• Formal defects: a holographic will must be written, dated and signed entirely by the testator. The lack of one of these elements renders the will contestable for formal defect, since the law provides that minimum requirements be respected to ensure the authenticity of the document.
• Falsity: the suspicion of a forged will makes technical verifications necessary, such as graphological expert opinion, to compare the handwriting with other authentic documents of the testator. In case of positive finding, the will is considered not valid.
• Mental incapacity of the testator: if the testator was not able to fully understand their own decisions at the moment of drafting, the will is contestable for incapacity to understand and intend. This often occurs when the testator suffers from psychic or degenerative pathologies; the proof of such incapacity can be provided through medical certificates or testimonies of those who assisted the person in the period in question.

The contestation procedure of the holographic will can vary depending on the typology of the will and on the reason for the contestation. Normally, the contestation takes place through the submission of an appeal to the Tribunale, in which the reasons for the contestation are set out and all the proofs are attached.

These modalities can include:

• The gathering of medical documentation to demonstrate the incapacity of the testator.
• The graphological analysis of the will to verify its authenticity.
• The request for testimonies of persons close to the testator to confirm any undue influences or pressures.