Inheritance Law is a fundamental branch of Civil Law and regulates the post-mortem distribution of an individual’s property. Initially, a person is free to distribute their property as they wish by drafting a will. If they have not made provisions for a will, then their entire estate is distributed according to the law to their legal heirs.
There are different types of wills: self-composed, public, and secret wills. The self-composed will is more common as it is the simplest and most economical solution, but it is also more susceptible to challenge or alteration in practice. The public will is drawn up before a notary and is strictly formal, while the secret will has a dual character, combining elements of the first two types.
However, precisely because it involves property, the pursuit of certain individuals, justified or not, often intrudes to challenge the legal results sought by the respective will and initiate legal disputes. A will can be challenged for the following reasons:
- Forgery of the will: The very act of drafting the will can be challenged as fraudulent by the purported testator.
- Challenge to the true intent of the testator to draft the will: In this case, the seriousness of the testator’s intention to draft a will is questioned (lack of animus testandi). Allegations are made regarding whether a text, which otherwise meets the necessary elements of a will, will indeed determine the distribution of the deceased’s property. For example, the disorderly writing and careless appearance of a will are serious indications of a lack of a genuine intention to draft a will, depending on the specific circumstances of each case.
- Challenge to legal share: As previously explained, the testator can distribute their property in any way they desire. A fundamental principle of civil law, particularly in inheritance law, is respect for the will of the testator. However, for the sake of the constitutionally protected institution of the family, the legislator imposes an obligation on the testator to leave a minimum percentage of their property to their relatives. If the testator violates this obligation, it is said that they infringe on the legal share of each of these individuals. This protection of the family institution, therefore, imposes limitations on the absolute respect for the testator’s will and establishes a ‘compulsory succession’ for a certain percentage of the total property for the sake of a specific circle of individuals, the ‘family’ of the testator.This balancing act, the ‘conflict’ between the absolute respect for the testator’s will and the protection of the family institution, resulted in a solution of mutual compromise, allowing both elements (‘principle of practical harmonization’) to coexist. This principle does not apply when a valid disinheritance of the heir takes place in the will, as the testator, for certain reasons specified by law, can deprive a relative even of their legal share. Similarly, it is common for a will to exist but not specify the distribution of certain elements of the testator’s property, only mentioning some of them. This is the problematic situation that arises when the will does not exhaust ‘the inheritance’. In this case, the honored (i.e., the one who was honored by the testator, including the testator’s name in the will) will fight for the inclusion (in the will) and the distribution of the undistributed property, while the non-honored and non-valued heir will try to argue that as for the undistributed, the succession of the ‘non-honored’ should apply. For supporting one view or the other, a critical examination of the testator’s intent and legal research into the solutions given by the courts in similar cases will be crucial.
It is not uncommon for unexpected appearances of “wills,” whether unique or subsequent to those already presented, which usually favor the one who brought them to the surface. Well-trained graphologists with whom we collaborate have significantly contributed to resolving such cases, effectively supporting our legal arguments.
When, however, there is a lack of a certain type of will, the legally provided succession is called upon to regulate matters related to the distribution of the property left behind by the deceased person, adding new potential issues to be resolved.
It becomes evident, then, that the distribution of a person’s estate can raise several disputable issues depending on the manner in which it has taken place. But even if such issues do not arise, the death of a person follows a process of formulations and formal details necessary for the inheritance elements to pass into the possession of the heir/heirs. These actions need to be completed with care and absolute formality to prevent the interested party from facing unpleasant surprises in the future.
As is the case with any property acquisition, issues of tax law often arise in inheritance matters, which must be carefully examined each time to be processed legally and, at the same time, with special emphasis and diligence to achieve the maximum cost savings for the heir, taking advantage of all the beneficial provisions available to the legal advisor each time.
The law firm provides legal support for all the above issues, which it is well acquainted with, in order to offer effective assistance to both the defendant and the plaintiff. Indicatively, we provide the following services:
- Support in the process of accepting inheritance, issuing a certificate of inheritance, and publishing the will.
- Submission of lawsuits regarding inheritance, annulment of the will, challenge of the legal share, etc.
- Handling cross-border inheritance cases with inherited property abroad/domestically (real and/or movable – bank accounts, etc.).
- Settling tax issues related to the inherited property, ensuring that the heirs take all necessary actions for the legality of the process, and exploiting whatever exemptions – more or less known – are provided by the tax legislator at each instance.