What rights do relatives excluded from a will have?

Have you ever wondered who can contest a will? Can it be challenged by those who have been excluded? Let’s delve into the rights of relatives not included in a will. To understand this issue, it’s crucial to start with an important premise regarding inheritance.

The distinction between statutory heirs and forced heirs
In the absence of a will, inheritance laws determine heirs based on rules outlined in the civil code. These rules prioritize closer relatives first and, if they are absent or renounce their inheritance, more distant relatives. These are referred to as “statutory heirs,” identified by law.

Conversely, when a will is drafted, the testator is free to distribute their assets as they wish, with exceptions made for rights of the spouse, children, or in the absence of children, parents. These are termed “forced heirs,” entitled to a mandatory portion of the inheritance known as the “legitimate share.”

It’s important to note that while “statutory heirs” and “forced heirs” sound similar, they are not perfectly synonymous. Statutory heirs constitute a broader category in cases where there is no will, whereas forced heirs specifically apply when a will exists.

Can a person excluded from the will contest it?
There are several grounds on which a will can be contested. One common scenario is when a forced heir (spouse, children, and parents) receives less than mandated by law.

A will can also be contested if it appears to be altered by a third party, dictated under duress, forged, or created while the testator was mentally incapacitated.

Importantly, a person excluded from the will can contest it as well. This is because, as mentioned earlier, in the absence of a will, the “disinherited” individual might be entitled to a share of the inheritance.

For example, siblings are not “forced heirs.” Therefore, if there is a will excluding them, they have no claim. However, in the absence of a will or if the will is invalidated, siblings would inherit if the deceased had no children.

Rights of relatives not included in the will
From the above, it’s evident that those not included in a will can contest it: they can review the document (which, being notarized, is public) and request a handwriting analysis to verify its authenticity. Additionally, as potential heirs, they could request access to medical records to ascertain the testator’s mental capacity at the time of drafting the will. However, the burden of proof lies with the challenger to demonstrate the document’s falsity or the testator’s cognitive impairment.

However, it’s essential to note that relatives not included in the will can only successfully petition to annul the will if they could claim a share of the inheritance under legitimate succession laws following a favorable court ruling.

Conversely, if the petitioner would not inherit anything even without a will, their action to annul it would not succeed.

VGS Lawyers is a law firm specialised in Inheritance and Wills under Italian Law. In case you need assistance feel free to contact info@vgslawyers.com