When the Will might be challenged?
A will is a revocable act by which every adult can dispose of his possessions for the time in which he ceases to live. It is the main tool that allows you to dispose of your assets, after your death.
While minors, for example, cannot draft a Will as well as those who, although not expressly banned from doing so, prove to have been, for any reason, even transitory, incapable of understanding at the moment in which they made their Will.
In cases of incapacity, the Will can be challenged by anyone who has an interest recognised in the relevant assets: this means that not only the appointed heir but also the ones who have been someway excluded from the inheritance.
The action to challenge the will expires within five years from the day in which the testamentary dispositions were executed.
When it is possible to challenge the Will
The Will can be challenged first of all if it does not respect the so-called “reserved quota” that is, those percentages of inheritance that the law requires to be reserved for the deceased’s family members based on the degree of kinship and which must necessarily be taken into account in the drafting of the will.
In particular, if the deceased husband leaves only the other spouse, with np children, half of the deceased husband’s inheritance and the right of residence on the marital home are due to the wife; while the remaining 50% of the inheritance represents the freely available share of the Will which can be in the benefit of everyone else.
If the deceased spouse leaves a husband or wife and an only child, one-third of the inheritance and the right of residence on the house go to the spouse, one-third of the inheritance goes to the only child and one-third of the inheritance represents the available share.
If the deceased spouse leaves a husband or wife and two or more children, a quarter of the inheritance is due to the spouse plus the right to the marital home, half of the inheritance must be divided equally among the children and a quarter of the inheritance is the share of the will freely available.
If there is no spouse and in the presence of an only child, the child is entitled to half of the inheritance and the other half of the inheritance is the freely available share of the will.
If the deceased spouse leaves the spouse and parents, half the inheritance is due to the spouse plus the right to the marital home, a quarter of the inheritance is due to the parents and other ascendants, and a quarter of the inheritance is the freely available share of the will.
If the deceased spouse leaves the parents alone, they are entitled to one-third of the inheritance and two-thirds of the inheritance are freely available to share of the will.
Challenge of the holographic Will
The Will can be drawn up by notarial deed or written by hand by the testator.
In the latter case, the law requires certain formal requirements to be respected. This type of Will, which is called a “holograph”, must be written by hand (italics or block capitals) by the testator. The holographic will must be written only by the testator as holography is the primary requirement of this type of deed. Therefore, a Will written on a computer or with a typewriter would be null and void.
The holographic Will must be signed at the bottom by the testator at the end and if it consists of more pages, each page must be signed. The Will must bear the handwritten date, with day, month and year.
A Will can, in fact, be challenged and voidable even when it presents defects of will and consent, that is when the Will was written not by one’s own free will but in conditions of threat, error, violence, physical or psychological, for which it is not an authentic manifestation of the will of the testator.
In particular, the error consists in the false representation of the legal reality (error of law) or of fact (error of fact). In practice, the Will (or only a part of it) is voidable when it is clear that it was written on the basis of erroneous beliefs. The Civil Code specifies that the Will can be annulled by mistake on the reason when the reason results from the Will and it is the only one that determined the testator to dispose of.
In case of annulment for psychological or moral violence, it must be proved that the Will was drawn up under the threat of personal damage. The cancellation for willful misconduct contemplates the hypotheses in which the Will was written behind the deception of a third person.
The Will can also be challenged when it is characterized by an illicit reason, condition or charge; when the Will is in favor of the notary or of the witnesses who participated in the drafting; when the Will is made by the person under guardianship in favour of the guardian or by the beneficiary of the support administration in favour of the administrator.
The Will is void when it presents anomalies or particularly serious defects. In this case, it produces no effect and it is as if it never came into existence.
On the other hand, it can be annulled when it presents less serious anomalies than nullity and produces the effects to which it was directed, but these can be eliminated with specific judicial action.
The nullities of a Will can be:
– formal, pursuant to art. 606 of the Civil Code the (holograph) Will is void due to lack of autograph, that is to say when it was not entirely handwritten by the testator, or due to lack of signature;
Furthermore, the public Will and the secret Will are null and void due to the lack of the notary having written the declarations of the testator and due to the lack of signature by the notary or testator;
– substantial, these nullities include succession agreements, subjunctive Wills, reciprocal Wills, Wills in favour of individuals who are unable to be beneficiaries, disposition remitted to the discretion of the third party, Will on condition of reciprocity.
If you need legal assistance in relation to a will challenge; opposition; declaration of nullity; or, more in general inheritance issues, our Team would be happy to provide you with a guide.
For any enquiry please contact: info@vgslawyers.com