Our firm offers expert guidance to international clients who wish to plan the distribution of their estate after their death, whether they own assets in Italy or overseas.
Our tailored advice is based on many years experience of drafting wills and dealing with cross-border estates involving property in Italy. Our expertise is also based on our analysis of caselaw involving the European Succession Regulation since its entry into force in 2015, involving decisions by the Italian court and the courts of other EU member states on inheritance litigation.
The Tribunale di Como (sentenza n. 906/2024) recently confirmed as legitimate the choice of an English testator to leave his share of his Italian holiday home to his second wife and her children. The testator, who was habitually resident in the United Kingdom, had made an Italian Will (“testamento pubblico“) in front of a Notary in Italy 2009. He had stated in his Will: “My succession shall be governed by English law”. The testator then died in 2020.
The testator’s children from his first marriage were aggrieved at being excluded from the inheritance had challenged the Will in the Tribunale di Como, claiming that they were entitled to a share of the property under the forced heirship rules of Italian inheritance law. However, the court found that having made a legitimate choice of his national law, English law, the testator was entitled to dispose of his property without any restriction or interference from Italian law.
The testator’s choice of English law was recognised as valid in accordance with Article 34 of the EU Succession Regulation no. 650 of 2012. The choice was valid even though the Will was made before the entry into force of the Regulation. The transitional provisions set out in Article 83 of the Regulation specifically provide for the validity of a choice of law in earlier wills which were made before the entry into force on 17th August 2015. The principle behind the Succession Regulation was to give certainty and clarity to a person planning their estate and writing their final wishes.
It was deemed irrelevant that the United Kingdom was not a party to the EU Succession Regulation or that it is no longer an EU member state. The Regulation was intended to have “universal scope” so a testator is entitled to choose his national law even where that of a non-Member State, so that only one law governs the entire succession. Where a person chooses the law of the United States which has a plurality of legal systems, the law applicable would be that of the State with which the Testator has the closest connection.
The EU Regulation specifically provides for the ability to make a choice of one’s national law (meaning the law of nationality of the testator either at the time of making the will or at the time of death). The Regulation furthermore provides that, in the case of an express choice of law there will be no “renvoi” to Italian law from the private international law rules of that national law.
Therefore in this case, even though the private international law rules of English law refer back to Italian law (by the principle of “renvoi”) when a deceased leaves property situated in Italy, the referral back is excluded in a case such as this, where a British testator made in their Will an express choice of English law to govern their succession.
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