When is a will not valid

When is a will not valid

Both those who are preparing to write a will and their heirs may be interested in the topic of the document’s validity: to the first, in order to draft one that cannot be contested upon his death, to the second, to make them aware of the grounds on which to base a possible challenge.

Italian law provides that a will is void if it is vitiated by a formal defect, i.e. in the case of:

  • Holographic will, when there is a lack of holography (i.e. the text written by the testator’s hand in clear and legible handwriting) or a lack of signature. Specifically, a holographic will is understood to be one that is written in full, dated and signed by the testator in his own hand
  • Public will, when it lacks the notary’s writing of the testator’s statements or the testator’s or notary’s signature. More precisely, a public will is a public deed received by a notary in the presence of two witnesses

The substantive defects that lead to the nullity of a will or individual testamentary dispositions are many and some are found in rules even outside the Civil Code.

For example, the following are among the substantive nullities: agreements as to inheritancejoint willswills in favour of persons incapable of receiving, dispositions entrusted to the will of a third partydispositions determined by an unlawful motive, and dispositions in favour of uncertain persons.

For all other formal defects, other than those outlined above, a will is voidable, such as a holographic, public, secret, etc. will.

If the will is void in its entirety, it has no effect. On the other hand, if individual testamentary provisions are void, the document is not wholly void if it appears that the testator would have concluded it without that part of its contents affected by nullity.

The total nullity of the document or the nullity of individual testamentary dispositions may be challenged by any person having an interest therein and the action is imprescriptible. Thus, the lawsuit before the court may be brought without any time limit both when contesting the total nullity of the will and when contesting the partial nullity of individual provisions.

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