Differences Between the Various Types of Wills in Italy
Are you a foreign citizen interested in the various types of wills in Italy? Would you like to learn more about how the process of writing a will works in Italy but aren’t sure what types of wills are provided for by Italian law? No need to worry! You’re in the right place! By reading this article, you will understand the specifics of each type of will and their differences.
First of all, what is a will in Italy?
A will in Italy is governed by Article 587 of the Civil Code, which states: “A will is a revocable act by which a person disposes, for the time when they will have ceased to live, of all or part of their assets.”
Therefore, from this legal provision, we understand that in Italy, a will represents a legal act through which an individual, known as the testator, arranges the distribution of their assets and properties at the time of their death.
This legal tool allows the testator to clearly indicate who should receive their assets and in what proportion, as well as to express any specific wishes regarding the management of their assets after their death.
In addition to asset management, a will can include instructions on personal matters such as appointing a guardian for minor children, burial arrangements, or other specific wishes of the testator. It should be noted that, in the presence of legitimate heirs, the testator does not have full freedom over the disposal of their assets, as a portion of them is legally reserved for the necessary heirs. However, through a will, the distribution of the available portion of assets can be personalized according to the testator’s wishes.
A will in Italy is a revocable act
The will is considered a revocable act because, under the so-called testamentary freedom, the testator has the right to modify their testamentary provisions until the last moment of their life.
Intestate succession in Italy
In the absence of a will, the recipients of the inheritance and the portion they are entitled to are determined directly by law, according to what is known as “intestate succession,” under Article 565 of the Civil Code. This article states:
“In intestate succession, the inheritance is devolved to the spouse, descendants, ascendants, collateral relatives, other relatives, and the state, in the order and according to the rules established in this title.”
How many types of wills are there in Italy?
It is important to note that, despite there being different forms of drafting a will, all are equally valid under the general principle of equivalency of testamentary forms.
Now, let’s examine the ordinary forms of wills in Italy governed by Section I of Chapter IV of Book II of the Civil Code, specifically Articles 602, 603, and 604.
The Civil Code identifies three different procedures corresponding to three types of wills:
- Holographic Will
- Public Will
- Secret Will
Although differentiated, all these types of wills aim to ensure the spontaneity of the declarations and their authenticity concerning the testator.
The holographic will in Italy
This is a privately written act (private writing) that is entirely written, dated, and signed personally by the author to unequivocally ensure that the document comes from the testator.
The drafting can be done by any means and on any suitable medium.
The requirement of handwriting in the holographic will in Italy
Regarding the requirement of handwriting, this is only satisfied if the document is written entirely by the hand of its author, using their usual handwriting, without the intervention of third parties.
The Italian Court of Cassation, with ordinance no. 5505 of March 6, 2017, expressed its opinion on the matter, stating: “In the presence of assistance and guidance of the testator’s hand by a third person in drafting a holographic will, such third-party intervention, by itself, excludes the requirement of handwriting for the validity of the holographic will, regardless of the possible correspondence of the content with the testator’s wishes.”
This statement aligns fully with the legislative spirit behind the rules on formalism, whose purpose is to ensure that the act originates directly from the author’s hand, considered the most authentic form of expressing their will.
The literacy requirement for the holographic will in Italy
An implicit requirement for the valid use of this type of will is literacy, understood as the ability to write. Consequently, the holographic will is not valid for those who cannot read or write and who have copied the text from another source without understanding its meaning, as this would indicate a lack of intent.
On the other hand, if the person can write and understand the meaning of the words, they can legitimately draft a holographic will even by dictation or by copying a text prepared by someone else, as long as they are aware of the content of the document.
The signature in the holographic will in Italy
For the will to be considered validly signed, the signature must be placed at the end of the provisions, except when there is not enough space on the page, allowing for a marginal signature.
Conversely, a signature inserted in the body of the provisions invalidates only those written after it, unless the previous provisions are fully autonomous. This highlights the importance of clarity and precision in testamentary intent, indicating both the origin of the document and the testator’s acceptance of its content.
The peculiarity of the holographic will in Italy
Unlike other traditional forms, the holographic will offers the clear advantage of being able to be drafted at any time on any medium, maintaining a high level of confidentiality.
However, this very secrecy can be a significant limitation of the holographic will. After the testator’s death, it may be difficult to locate the document if it hasn’t been communicated to anyone or if it was securely hidden. Moreover, once the holographic will is found, legitimate heirs, who have a direct interest in the succession, may not be aware of its content or may disagree with the provisions contained within it. In such cases, heirs may be tempted not to disclose the will or even to destroy it to favor the intestate succession provided by law.
This scenario highlights an important dilemma: on the one hand, the holographic will offers the testator greater autonomy and privacy in planning the succession, but on the other hand, it can create uncertainty and disputes after death, especially if it has not been made public or drafted in accordance with specific legal provisions. Therefore, it is essential that those drafting a holographic will are aware of its advantages and limitations and take the necessary precautions to ensure that the document is traceable and valid according to current laws.
The public will in Italy
The public will is an important form of testamentary disposition that offers several advantages and distinctive features. One of its main qualities is its universal accessibility, as it is an official act drawn up by a notary, who plays a key role in ensuring that the testamentary provisions comply with the law and the testator’s interests. This rigorous formality makes the public will easily understandable and legally valid for all involved, regardless of disabilities such as blindness, deafness, or illiteracy.
The notary and witnesses in the public will in Italy
Additionally, the involvement of the notary and witnesses during the drafting of a public will helps ensure a higher level of transparency and reliability. The presence of witnesses can provide further confirmation of the testator’s will and protect the document from future disputes.
Differences and common points with the holographic will
However, the secrecy of the public will is relatively limited compared to the holographic will since the notary and witnesses are present during its execution. This might be seen as a downside for those who prefer to keep their testamentary dispositions private and confidential.
Nonetheless, both the holographic and public wills share a similar mechanism for recording the testator’s will, as both are drafted with the assistance of a notary who ensures the authenticity and origin of the declarations.
Ultimately, the choice between a holographic and public will depends on the testator’s personal preferences, specific needs, and individual circumstances.
The secret will in Italy
If the testator wishes to keep their testamentary disposition confidential and protect themselves from potential abuse by future heirs, they can opt for the secret will.
According to some scholars, this form of will consists of two distinct elements: the document, considered a private writing over which the notary receiving the act has no power to verify the content, and the act of receipt, which is public in nature.
However, legal interpretation considers the secret will as a single, complex act.
As for formalities, it is important to distinguish those related to the document from those concerning the act of receipt.
According to Article 604 of the Civil Code, the document may be drafted either by the testator or by a third party, by hand or by mechanical means, and must be signed by the testator either at the bottom if handwritten or on every half-page if written, even in part, by mechanical means or by others.
Subsequently, to ensure secrecy, the document must be formally sealed both by the testator and the notary at the time of delivery. In the presence of the notary and witnesses, the testator declares that the sealed package contains their will.
At this point, the notary writes the act of receipt on the same paper as the will or on a separate sheet placed inside the package, duly sealed by the notary.
Despite the advantages of secrecy and security offered by this type of will, the procedure is complex and rarely used in practice. Often, the same goals of confidentiality can be achieved by depositing a holographic will with a notary or a trusted person.
Other forms of wills in Italy
- Special Will: This is a form of will used in exceptional and particular circumstances, such as public calamities or contagious diseases. In such situations, the normal methods of drafting a will may be impractical or inadequate, so the law provides for an alternative procedure to allow the testator to formalize their wishes in a valid and legal way. This form requires that the testator’s declarations of intent be entrusted to a public official, such as a notary, justice of the peace, or mayor, to ensure that the will is drafted in accordance with the law and is legally binding.
- International Will: Governed not by the Civil Code but by Law no. 387 of November 29, 1990, which adopted the Washington Convention, it represents a form of will often referred to as the “younger sibling” of the secret will: it requires fewer formalities but is similar to the secret will in many ways. However, the international will is also rarely used in practice.
Conclusions
After this in-depth look at the various types of wills in Italy, we hope your ideas are clearer! Everything is understandable with the help of an expert in the field.
If you are interested, contact one of our Italian lawyers specializing in succession.
We also suggest reading our article on testamentary succession in Italy.
