Succession cases throughout the world share one thing in common: the principle that heirs can be appointed by will. Domestic succession laws can, however, place limitations on the testator’s power, such as the concept of ‘reserved shares’.
In some cases, however, it is not easy to determine whether testamentary heirs should receive the entire inheritance or whether they should ‘compete’ with legitimate heirs. This question may also be of particular interest in international successions, when the estate includes assets located in multiple jurisdictions.
In Italy there are two principles that, at first sight, appear to be similar: the Latin term “institutio ex re certa” (art. 588 Civil Code) and the testator’s division (art. 734 Civil Code).
In both cases, the heir is not referred to as the owner of a share of the entire estate. Instead, specific assets are attributed to him or her. The difference is that, while with the institutio ex re certa, the size of the shares is based on the amount of the assets within the testator’s estate, in the case of the ‘testator’s division’, the testator indicates the respective shares of the beneficiaries, and then allocates the assets. Below is an example of how this works in practice.
Case A
A married person makes a Will leaving real estate to each of his two children: he leaves a villa in Rome worth 3,250,000 euros to his son, and a flat in Milan worth 1,750,000 euros to his daughter. Based on the date of death values, the son receives 65% of the estate and the daughter 40%. This is a case of institutio ex re certa.
Case B
If, on the other hand, the testator had written in his Will: “I leave my real estate to my children as heirs in equal parts”, and then assigned them in the manner we have just indicated, the division would be legally defective and as such challengeable, because the assets in Rome and Milan are not of the same value.
In both cases, the wife does not receive anything (we do not consider here the actions she could take as a beneficiary entitled to a reserved share).
But what would happen if, in addition to real estate, there was also cash in bank accounts? As we are considering these principles in the context of international successions, let us imagine that such accounts are located abroad.
Again, we must distinguish between institutio ex re certa and ‘testator’s division’.
In case A (institutio ex re certa), the assets are to be devolved according to testamentary succession. Thus, the son is entitled to 65%, the daughter to 35%, and the wife does not receive anything.
In case B, on the other hand (division by the testator), the testator’s intestate succession will come into play for the assets not mentioned in his Will. Therefore, the children and the deceased’s wife will each be entitled to one-third.
The Italian Supreme Court, however, in its judgment No 17869/2019 seems to raise a different argument, denying the applicability of the Will’s disposition outside of the scope of the Will itself for such cases where there is an institutio ex re certa as well.
In practice, the Italian Supreme Court merely highlighted an interpretative criterion of the testator’s Will, distinguishing between assets that already existed in the estate at the time the Will was written and those that had arisen. If they existed and the testator made no mention of them – nor is there any indication in the Will that he intended to apply the shares deducible from the institutio ex re certa to the entire estate – the assets are then divided according to the rules of the legitimate succession.
Thus, if the foreign accounts already existed at the time of the will but were not mentioned in the Will, the lawful succession must be applied to them. This would certainly be the case for the full amount of the account, even if it was increased after the Will was executed.
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