International succession with possession in Italy and abroad: opening two successions is possible!

May 03, 2021

The Joint Sections of the Corte di Cassazione, with sentence n. 2867/2021, while addressing the issue of transnational inheritance, have tackled two recurring problems, one related to the principle of unity of the succession, prevailing in Civil Law countries, and the other related to the division of it, which is typical of Common Law countries.

In Italy, successions characterized by international elements (such as the deceased’s citizenship or the place where his/her possessions are located) are regulated by Law No. 285, promulgated in 1995, which not only defines the criteria of connection to other legal systems, but also includes the referral to foreign regulations.

The Supreme Court has affirmed the possibility of opening two distinct successions, thus forming two inheritance units, each one regulated by different laws determining the validity and effectiveness of the inheritance title, identifying the heirs, establishing the entity of the quotas and the acceptance and publicity procedures, setting up any eventual protection for the legitimate heirs.

Facts of the case

The specific case submitted to the Supreme Court dealt with the inheritance of a British citizen deceased in Italy, who had been married to an Italian citizen. His spouse had requested verification of the withdrawal of the will left by the deceased in London, in 1997.  According to it, the deceased would have left a legacy of 50,000£ to his wife and the rest of his heritage (consisting in real estates in Italy and several moveable properties) was to be inherited by his sons from a previous marriage.

According to the woman, since the deceased was a British citizen, the succession was to be regulated by the British law, thus the will was to be considered withdrawn in accordance with the subsequent marriage contracted by the testator, as provided by the 1937 Will Act. On the other hand, for what concerned the deceased’s sons, Italian law was to be applied and therefore the will was to be considered fully valid.

THE COURT’S FINDINGS

 The rules of conflict-of-law referred to in L. n. 218, 1995, identify the lex successionis (“law of succession”) in the deceased’s national law: thus, in the case under consideration, the law regulating the succession shall be the British law. However, the latter, whilst providing the regulation of moveable properties, refers to the lex rei sitae (in latin “law of the located object”, the law of the State in which the properties are located) for what concerns the regulation of real estates.

In other words, the consequences of the referral of the Italian international private legislation to the British international private legislation, and the latter’s consequent backwards referral to the former, determine a division between the deceased’s moveable properties and his real estates: the law regulating the inheritance of real estates shall be the Italian law (i.e the one of the State in which the properties are located), while the law regulating the inheritance of moveable properties shall be the deceased’s national law, therefore, in this case, the British law.

Sara Bocci

Law Diploma at University of Siena (2016), Master at SIOI (The Italian Society for International Organization) in Rome in "International relations and International Protection of Human Rights", she completed an internship at The Permanent Mission of Italy to the UN in New York (2017)

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