Forced heirs - Legittimari

The Case

It may happen that a person living in Italy left a holographic will excluding from the inheritance one of the children living in Australia.

Let's have a look at which law shall apply to such succession and what the rules are with respect to the rights of a child residing in Australia.

1. The applicable law.

The first step would be to determine which law shall apply to the deceased succession: whether the testator's (Italian) law or that of the place of residence of the excluded child  (Australia).

The general rule established by the European Regulation is that the deceased succession is governed by the law of the place where the deceased had their habitual residence.

In our case, the deceased was resident in Italy.

Therefore, Italian law shall apply to their succession and it is to this law that the child residing in Australia shall resort to verify what rights they are entitled to as a result of being excluded from the inheritance.

2. Forced Heirs

The Italian law protects certain family members of the deceased by guaranteeing to them a minimum share of the inheritance, even if the deceased provided otherwise with their will. These entitled beneficiaries are the so called legittimari.

The Legittimari are:

- the spouse;

- the legitimate children, whether natural or adopted or, in the absence of children,

- the legitimate ascendants (parents, grandparents).

The law guarantees to these individuals a minimum share of the inheritance, which cannot be taken away from them even in the presence of a will.

According to Italian law, where the deceased left multiple children, they would be entitled to two-thirds of the estate to be divided equally.

In our case, the deceased was a widower with two children and left all his assets to the one resident in Italy; however, the other resident in Australia, is also entitled to a share of the assets, equal to one-third of the inheritance.

This means that, even if the will was made in favour of only one child, the Italian law protects the excluded heir ensuring that they receive their portion of the estate.

Therefore, the child resident in Australia would be entitled to claim his or her legitimate share of the inheritance.