After a will has been read by the notary to the parties, is it sacred, or can someone challenge it? And in which cases?
We ask Flavia Fiocchi, who sits on the National Council of Notaries, not in specific reference to the case of Berlusconi: «As a general rule, the provisions of a will are not enforceable, unless they harm superior interests worthy of protection. This happens if the legitimate shares are violated, i.e. those which are due by law to certain subjects linked to the testator by very close kinship relationships. It rarely happens that the will contains offensive expressions in the text, which will be censored but this does not concern the distribution of the goods covered by the will”.
Are there not cases of indignity similar to those that lead to the revocation of a donation?
«Yes, but the unworthiness to inherit is strictly limited to the cases envisaged by article 463 of the civil code, that is, to extreme hypotheses: homicide or attempted homicide by the beneficiary to the detriment of the person who has made a will. And it is not enough to contest the fact, a judge’s sentence is needed ».
In your professional experience, have you ever had a will contested?
«Yes, but for completely different reasons, that is, when it is not written clearly. Looking through Berlusconi’s three wills, for example, some doubts may arise in this regard in the last two but it is not up to us external subjects to raise objections, if anything it is up to the parties and their lawyers. There may also be disputes if, for example, there are more than one wills. In that case the later revokes the earlier ones, except in the parts that are compatible.
Are such disputes due to the lack of clarity of the texts frequent?
“Unfortunately, Italians show little propensity to make a will, and even less to do it with a notary, with his assistance. Sometimes the result is texts that leave the interpretation doubtful”.
When the notary is involved, the times and rituals are known, but what happens if a will is found in a dresser drawer?
“Whoever finds it has a duty to ask for its publication, although I have my doubts that this always happens unless there is an agreement to the contrary with all those entitled to it, which is not too widespread. To those who have written testamentary wills and want to enforce them, I advise at least to deposit the document with a notary in trust. For example, I have many of them locked in the safe”.
Let’s reverse the point of view. If it is the person who dies who wants to violate the rights of the heirs to the legitimate share, can he be able to do it legally? For example through donations in life?
“To be valid, donations must always be made with a public deed, so they cannot escape. After death, they are considered as an advance or as a replacement for the legitimate share. The division of assets among the heirs cannot fail to take into account the previous donations received by them”.
Last question, not a legal one: doesn’t the fact that two children receive 53% and the other three 47%, even if all the laws have been applied correctly, leave no grounds for contesting the final result as unfair?
“No, you can’t object, unless it can be shown that the legitimate quotas have not been respected or that previous donations have altered the subdivision”.