Francesco Papurello

A valid will can be made by any person of a legal age, if he/she is not certifiable insane or under disability during the act.

Revocation or modification of the will
The testament has to be the expression of the testator's last will and therefore it could be revoked or modified anytime. It will be carried out if a new will has been made, which invalidates the old one, but it could also contain, partially or completely, dispositions, which do not correspond with the previous will.

A revocation keeps effective by a later made will, also if it is ineffective. Reasons for that, could be the death of the inheritor in the testator's lifetime, his unworthiness or the refusal of the succession. In this case the legal succession will be applied.

The will can also be simply destroyed, if the testator does not agree anymore on the contents.

Nullity of the testamentary contracts
The last dispositions have to be done with the own will, which makes any kind of agreement (testamentary contracts) null and void. This applies for the contracts, which will be disposed of after the own death, as well as for agreements. The inheritor will receive rights, deriving from a person, whose procedures of inheritance have not been already opened; including also the refusal of these rights.

Nullity of the common testament (reciprocal or for the benefit of a third person)
In order to assure the own free expression of the last will, the legislator forbids testaments, made jointly by several persons. A testament cannot be made by the same act, by two or more persons, either for the benefit of a third person, or under the title of a reciprocal or mutual disposition.

Representation (applies for inheritors with or without a testament)
If the children, or otherwise the brothers and sisters of the deceased person, who own the rights of succession, do not want or are not able to accept the inheritance (because of death, unworthiness or renunciation), their descendants will become the new inheritors.

Forms of wills

The holograph will

The holograph will must, however, be entirely written, dated and signed by the hand of the testator. It cannot be written with a form, a typewriter, a computer or by another person and only signed by himself. Even if there does not exist other formal regulations by the law concerning the validity of the will, the following rules have to be observed to avoid misunderstandings:

• exact indication of location and date,
• exact indication of first name and surname,
• pagination in case of a voluminous will.

That person who administrates the holograph will (notary, advocate, private person) has to consign it to a notary for the publication in the moment, in which the death of the testator is known.

The public will

The public testament will be made by a notary and in the presence of two witnesses in a public act. The testator declares in front of the notary and the present witnesses his will, which will be written down by the same notary. Afterwards it will be read out and then signed by the testator, the two witnesses and the notary.
If the testator cannot read, four witnesses have to be present.
After the death of the testator, the legitimate heirs will be called by the notary concerning the reading of the will.

The mystic or solemn testament

The mystic will can be written by the testator or a third person. If it was written by the hand of the testator, a signature of himself at the end of the document suffices. But if it was partially or completely written by another person or not by the hand of the testator, the document has to be signed after each half of a page.

The testament will be enclosed in an envelope, sealed in the presence of two witnesses and then consigned to the notary.

If the testator is not capable of writing or in the moment of the testamentary act of signing it, then the circumstances and reasons have to be explained to the notary. He will add an corresponding annotation to the certificate of deposit.

After the death of the testator, the notary has to publicise the will. The notary writes the contents of the same testament in the minutes in the presence of two witnesses, in the same way like the publication of the holograph will.

Contents of the will

Usually the will contains dispositions on the patrimony of the testator.

Dispositions not under the law of property
Also "dispositions not under the law of property" can be mentioned in the will. In this way the testator can for example:

• recognise illegitimate children;
• express the will for the legitimation of illegitimate children (it is a condition, with whom an illegitimate child can request the legitimation after the death of the testator);
• nominate a tutor for underage or under disability surviving dependents;
• qualify an unworthy person again to the inheritance;
• nominate an executor of the will;
• mention wishes concerning e.g. the care or attention of the tomb.

Dispositions under the law of property
Concerning the contents of the will, especially the property, first of all it has to be distinguished between the appointment of the inheritor and the assignment of the legacy.

Appointment of the inheritor
In the case of the appointment of an inheritor, the testator nominates in the will the heirs and each of them receives a certain part of the whole inheritance.
This can happen by the assignment of an undivided (ideal) share of the inheritance (e. g. one third of the inheritance) or by the assignment of concrete goods of the inheritance (e. g. residential house). From the assignment of concrete goods the intention of the testator, that he wanted to leave a share of his assets to the heirs, must be clear.

Then we are talking about an universal legal succession, which means that the heir assumes all the rights of the testator, but then also the connected obligations (he will be also liable for the debts of the testator).

Assignment of the legacy
If the testator does not leave single assignments as shares of the whole patrimony (e.g. a clearly defined piece of furniture, a real estate), the beneficiary will be considered as a legatee and not as an inheritor. The single assignments cannot be considered as shares of the entire property. In this case we are talking about an single (particular) legal succession.

In order to assess if the assignment has to be considered as an appointment of the inheritor or as a legacy, it would be necessary (in the case of doubt) to find out, if the testator wanted to assign the good as a share of the entire property or as a legacy.

In this case it has to be paid attention to the fact, that the inheritor, in contrast to the legatee, will also be liable for the debts of the testator and in addition he will be responsible for the publication of the legacy.

Conditions and charges
The appointment of the inheritor or the assignment of a legacy can be subjects to a condition (happening in the future, whose realisation is not yet sure) or can be bound to a determined charge (services, which would be demanded by the beneficiary).
The realisation of charges can especially be asserted by coheirs, legatees and executors in the legal way or in court.

The executor of a will
If the fulfilments of the in the testament expressed last will were complicated and onerous or looked from a human point of view difficult, it would be advisable to nominate a trusted third party as the executor of the will.
This person can also be an inheritor or a legatee.

The executor is responsible for the exact fulfilment of the testator's last will. He has to administrate the inheritance until the fulfilment of the last will with the obligation to become aware of his own activity.

Before the making of the will, the future executor has to be already informed about his business and he must have agreed.

The right of the legal portion
If the goods of the testator will be inherited by persons, who are unrelated to the testator, organizations or legal entities, the legislator provides a legal portion for the nearest relatives. The remaining share of the inheritance is considered as a disposable portion.

Beneficiaries of the legal portion

The spouse, the legitimate (the legitimated and adopted children are equated) and illegitimate children, as well as the legitimate ancestors have the right of a legal share.
If the children cannot or do not want to accept the inheritance (because of the death, the unworthiness or the refusal of the inheritance) their children can demand this right.
If the children or the qualified descendants are present, the ancestors (parents, grandparents etc.) will not be entitled to the legal portion.

The right of the legal portion of the spouse

A particular regulation concerns the rights of the spouse.
The spouse possesses the right of abode of the house, which was intended for the family residence; as well as the right of use concerning the furniture and fixtures, provided that they were owned by the testator.
Those rights burden the disposable portion and - if it is not sufficient - also the legal portion of the spouse and maybe also the those ones of the children.

The separated spouse has only the right of a legal portion, if he or she is not responsible for the separation.
The separated spouse, who is responsible for the separation, and also the divorced spouse have the right of a life annuity, if they received alimony from the testator.

Amount of the legal portion

The statutory amount of the legal portion depends on the degree of relationship:
The testator could dispose of his entire property in his lifetime using donations, and in this way the beneficiaries will not get their rights of a legal portion.
In order to avoid this fact, the legislator has determined, that the realised donations in the lifetime of the testator have to be included in the calculations of the legal portion.

During the calculation of the legal portions, first of all the testamentary dispositions and then the realised donations in lifetime will be reduced; concerning the donations: the last ones realised in lifetime will be considered at first.

Substitute heirs

The testator can nominate in the same will a substitute heir, in the case that an inheritor cannot or does not want to accept the inheritance. With the acceptance of the inheritance by the substitute heir, the right of appointment of the descendants can be excluded.

Right of increase:

If several inheritors were nominated in the will without defining the shares or the equal parts, and one of them cannot or does not want to accept the inheritance, then his or her share will be divided into equal parts (depends on the number of the other inheritors) and added to the shares of the other inheritors. This could only be realised if there would not be nominated substitute heirs and that there would not be possible or demanded a right of appointment.

This called increase can also be carried out among several legatees, who inherit the same object, unless it could be recognised another will in the testament.