A will is a revocable document by which any person of sound mind may make disposition of his assets at a time when he will have ceased to live. There are several types of wills: holograph, public (notarial act in the presence of two witnesses) and secret. A word of warning: if the will is detrimental to the rights of a forced heir, the latter can take legal action to challenge it in whole or in part. It is essential, therefore, in these cases, to contact your notary in order to achieve the desired result within the law and to avoid future disputes among the heirs.
What it is
The will is a revocable document by which any person of sound mind may make disposition of his assets at a time when he will have ceased to live.
In our legal system, there are two common forms of wills:
- the holographic will;
- the will prepared by a notary.
The holographic will is a private document which has some formal requirements:
- handwriting (it may not be written on a computer but must be handwritten by the testator);
- it must be dated;
- it must be signed.
Although it is very simple and commonly used, this testamentary form has some disadvantages:
- possibility of destruction by third parties;
- possibility of loss;
- possibility of errors;
- possibility of counterfeiting;
- possibility of a dispute concerning the authenticity of the document;
- difficulties of interpretation in the case of particularly complex arrangements.
To avoid these issues, it is possible to have the will drawn up by a notary: i.e. a public will that is formalised by the notary in the presence of two witnesses and has significant advantages:
- rigorous assessment of the desires of the testator;
- no possibility of loss or theft;
- probative value typical of a public document;
- guaranteed compliance with the legal system;
- can also be made by those unable to use the holographic method, such as illiterate or foreign persons or those unable to write for any reason.
In addition to the public will, there is also the secret will (not common in practice), which is a will written by the testator or by a third party and delivered personally to the notary (who therefore does not know its contents); the notary merely draws up a simple statement of receipt.
Protection of Forced Heirs
The law protects certain categories of family members (“forced heirs”), allowing them a share of the inheritance (the “legittima” or legitimate portion) even contrary to any expressed wishes of the deceased in his will. These persons are the descendants (children and grandchildren), ascendants (parents, grandparents, and so on) and the spouse.
Depending on whether or not such persons exist at the time of death, the law provides, sometimes by way of very complicated calculations, what the share is of the inheritance reserved for them, considering also the debts of the deceased and any donations made by him during his lifetime, and what, therefore, is the share of the (available) inheritance of which the testator may freely dispose according to his own wishes.
There is therefore a limit to the freedom to make a will: if the will affects the rights of a forced heir, that heir may take legal action to contest the terms of the will.
The Role of the Notary
It is essential, therefore, in these cases, to engage a notary so as to prevent future painful family disputes and, above all, problems of saleability of assets under the will. Thanks to his special competence in matters of succession, the notary may suggest, in the case of a public will, how best to achieve the result intended by the testator, in compliance with applicable laws, avoiding any clauses or provisions which would be invalid because they are inconsistent with the provisions of the law.
How it works elsewhere in Europe
To facilitate understanding of the different rules governing succession in Europe, the Council of Notaries of Europe (CNUE), with the support of the European Commission has created the site www.successions-europe.eu in the 23 official languages of the 28 countries that are members of the European Union. The site provides the information needed to follow and understand any question relating to a succession in any European country.