Will in Italy

Ordinary wills

The testator can make an ordinary will as

• Handwritten will (testamento olofrafo) or
• Draw up a notarial will (testamento per atto di notaio)

Handwritten will in Italy

The testator must be of legal age to write a will by hand. The will must be handwritten and signed by the testator.

The will should state the “year, month and day” of its creation. If a corresponding date is missing or incomplete, the will is generally null and void. If the date is missing or if the testator inadvertently gives an incorrect date, the will should nevertheless be valid if the date can be determined from the contents – for example, “on the day the man first set foot on the moon”. A specific place is not prescribed; the date can be at the beginning or end of the will. A place is not prescribed.

The document must be completed with a transcript below the text

Words inserted or changed between the lines as well as deletions must be validated by the testator’s signature. If this signature is missing, the entire will is null and void if the changes significantly alter the will expressed in the original text.

The examination of the above criteria is carried out by the competent judge.

The notarized will

A notarial will is drawn up with the assistance of a notary (notaio). The notarial will has 2 forms:

• the public will and
• the secret will.

The open will

A public will is made orally and recorded by a notary. Two witnesses must be present for the will to be drawn up. The will must be signed by the testator, the witnesses and the notary. The testator receives a simple copy of the Italian will. The notary retains the original of the Italian will.

The sealed will

In principle, the testator draws up a sealed will by hand.  If the testator draws up the will by machine or commissions someone else to draw up the will, they must sign every second page of the will in their own hand. The sealed will is handed over to the notary in a sealed envelope. The notary seals the envelope, signs it and registers it.

The notary therefore does not know the content of the will.

The notary who notarized the will and was appointed by the testator as its depositary must, within ten days of becoming aware of the testator’s death, notify the existence of the will to the surviving spouse, descendants and relatives in the ascending line of the testator and, if they are not present, to relatives in the collateral line up to the fourth degree.

In the two cases mentioned above, if the identity or address of these persons is not known, or if their existence is unknown, the notary must make the announcement stipulated by notarial legislation.

Extraordinary will

A will is extraordinary if the testator’s life is in immediate danger. This is only drawn up in front of suitable witnesses.

Joint will

Under Italian law, joint wills are prohibited.

Contract of inheritance

A contract of inheritance is not permitted under Italian law. By way of derogation, a family contract (patto di famiglia) is permissible under certain circumstances. This applies to cases in which companies or company shares are to be transferred in whole or in part. This contract must be publicly notarized by a notary and concluded between the testator and all heirs and those entitled to a compulsory portion.

Recognition of wills and inheritance contracts drawn up in the form of another country

A written disposition of property upon death is effective with regard to its form if this:

1. corresponds to the law of the state in which the disposition was made or the contract of inheritance was concluded,
2. corresponds to the law of a country to which the testator or at least one of the persons whose succession is affected by an inheritance contract belonged either at the time the disposition was made or the inheritance contract was concluded or at the time of death,
3. corresponds to the law of a state in which the testator or at least one of the persons whose succession is affected by an agreement as to succession was domiciled either at the time the disposition was made or the agreement as to succession was concluded or at the time of death,
4. corresponds to the law of the country in which the testator or at least one of the persons whose succession is affected by an agreement as to succession had their habitual residence at the time the disposition was made or the agreement as to succession was concluded, or
5. corresponds to the law of the country in which immovable property is located, insofar as this is the case.

Att. Prof. (GTU / Georgien) Dr. phil. Stephan J. Lang