Collation is the act by which certain subjects, who have accepted the inheritance, contibute to the whole inheritance the goods received in life by the deceased.

Art. 737 c.c. provides that the legitimate and natural children and their legitimate and natural descendants and the spouse contributing to the succession must confer on the co-heirs all that they have received in life from the deceased by donation, directly or indirectly, unless the deceased has them dispensed from it. Collation can be made by imputation or by contribution in kind.

In the imputation form, the donated good does not become part of the estate but in the determination of the relictum and in the formation of the portion of each coheir is considered its value and, as a result, the portion that would have been due to the donor co-heirs is reduced to an amount equal to the value of the property donated and retained. In this case the estimate of the donated good is made with regard to the value that the good had at the time of the succession proceeding  and not at the time of the inheritance division Collation by bestowal in kind is, instead, the hypothesis, so called, of exceptional collation and consists of the effective return of the estate to the heirs. The donor has the right to reimbursement of the value of the improvements made to the property, within the limits of their value at the time of the succession and the right to reimbursement of extraordinary expenses incurred for the preservation of the object and the reimbursement of deterioration attributable to him/her.

 As for revenues and interests, art. 745 c.c. provides that revenues and interests on the sums subject to recording are not due until the day on which the succession proceeding was held. The legitimate and natural children, their legitimate and natural descendants and the spouse who donate to the succession are obliged to contribute.  The subjects required to collate must belong to the abovementioned categories, assuming the status of co-heirs.

Object of collation are only donations, both direct and indirect. Costs for maintenance and education and those incurred for diseases nor those ordinary made for clothing or for wedding are not subject to recording.

EXEMPTION FROM COLLATION.

 The exemption from collation, expressly provided for by art. 737 c.c., is the legal transaction by which the donor exempts the donee from the obligation to give to co-heirs what he/she has received from the deceased by donation. The law wants to reaffirm the principle of intangibility of the reserved share. Pursuant to the second paragraph of art. 737 c.c. the exemption from recording does not produce effects except within the limits of the available share. Consequently, if the dispensation would result in a prejudice to the inheritance, the donor will be required to provide the amount received in excess. The dispensation from collation means that the collateral relation does not arise and that, thus, for purposes of recording, the donation dispensed is completely ignored. In the presence of exemptions, succession and division take place in all respects as if no donation had never been dispensed and as if the goods had come out of the estate of the deceased for any other non-liberal cause. If the exemption compromises the inheritance, the donee will be obliged to bestow the excess.

Accordingly, the practical effect of the exemption from collation is only to make the co-heir retain the donation, without having to either return the good in kind or pour the value in money into the inheritance. The only constant efficacy that the said dispensation has, is therefore to avoid that the co-heir could  allocate by payment of money or return in kind the donated property, provided that being this one legitimate, only for the surplus, based on the available amount, it must certainly be assessed in order to ascertain whether the value of the donatum is equal to or greater than the portion and, in the event of redundancy, its count in the available share.

I THEORY: Consequently, the dispensation from collation does not subtract the donor from the effects of any reduction exercised against him by the other mandatory heirs to recover the portion of the donated goods in excess. Hence, the donor exempted from the obligation of collation can keep the donation up to the payment of the available share and the reserved one.

II THEORY: According to another interpretation, art. 737 civ. cod. states that if the donation exceeds the limit of the available share, the dispensation operates only for the part allowed by law, while the excess portion must be given to the collateral co-heirs for the division without the need for application by anyone. Thus art. 737, II co., civ. cod. depriving the dispensation of effectiveness beyond the limit of the available share, allows to eliminate the necessity of the reduction and to reach the same result also after the decennial term of prescription of the action of reduction.

It’s obvious that accepting the first or  second theory is not without practical significance. In the context of this debate, it is useful to recall an approach of the Supreme Court, which with timely, enlightening, and consistent motivation is placed in a position so called intermediate. According to the Supreme College, it is true that the action of reduction against the co-heir donee – spouse or descendants of the de cuius – presupposes that he/she has been dispensed from collation; otherwise, the only mechanism of recording sufficient to make each co-heirs achieve the due portion, without the need to resort to the co-heir donee to the specific protection that the law prepares for the share of the inheritance. On the other hand, it would be indispensable to appeal to this specific protection when the co-heir donee have been dispensed from collation and the donation affects the legitimate share of the others. In this case, in fact, only with the action of reduction it is possible to oblige the donee to give the surplus to the lawful heirs, in order to reinstate the legitimate due to them (art. 555, 737 civ. cod..).

This does not mean, according to the Court, that the rejection of the action for reduction (by prescription) affects the decision on the effects of the dispensation in a division of inheritance in which forced heirs participate. In fact, the participation of the forced heir in the succession ab intestato has its own effects that prescind from the proposition of the action of reduction. In any case, the donatum is not entirely unrelated to the succession and the donee cannot consider himself a participant in the division of the relictum as if he/she had not received those donations or as if he/she had received those goods in a different way from donation. A different interpretation would find an insurmountable obstacle in art. 553 civ.cod.

In fact, for the College, according to the latter rule, even if the successors are all legitimate, the lawful heir, being called to the succession to assigned to the relictum in a share not less than its reserved one, has no need, to obtain the amount reserved, to resort to the action of reduction of donations pursuant to art. 555 civ. cod. if the relictum is sufficient to cover the predetermined share which results from the fictitious meeting between relictum and donatum. This operation, being not only aimed at the implementation of the reduction, must be accomplished not only when it is necessary to proceed to such action but in any case, of contribution of legitimate heirs in the succession, to determine the share for each of them. From this it follows that, in case of succession of legitimate children, the dispensation from recording of donations made in favor of one of the co-heirs, if on the one hand it implies that the succession and division (according to the shares provided for by art. 556 civ. cod.) must be limited to the inheritance, without that dispensation, in case of prescription of the action of reduction, it can be opposed the limit constituted by the intangibility of the inheritance. On the other hand it does not exclude that the portion due  to the co-heir donee must be reduced by what is necessary to supplement the reserved share (based on the aforementioned operation) due to the other co-heirs, given however – in force of the prescription of the action of reduction – the unassailability of the donation even if the relictum is not sufficient to the integration of the reserved share.

PRINCIPLE OF THE INHERITANCE INTANGIBILITY.

The right to the inheritance cannot be, in any way, sacrificed by the testator. It is an intangible right. Art. 549 c.c. provides that the testator may not impose conditions on the share due to the legitimate heirs, without prejudice to the application of the rules relating to the division of the estate. In support of the inviolability of the inheritance, our legal system has provided two forms of protection: the first consists in attributing to the lawful heir the power to exercise the action for reduction against the injurious provisions; the second is given by art. 549 c.c. which, as we have seen, prohibits the imposition of conditions on the share due to the legitimate heirs.

THREE ACTIONS FOR THE PROTECTION OF THE FORCED HEIR.

Our Civil Code art. 553-564 deals with the protection of the forced heirs, calling it “reintegration of the reserved share due to the forced heirs“.

This protection consists of three independent, albeit closely related, actions:.

1. a) Reduction action stricto sensu;

1. b) Action for restitution against beneficiaries of the reduced provisions;

1. c) Action for restitution against third party purchasers.

 The first action is aimed at declaring the ineffectiveness (total or partial) of the testamentary provisions and donations, which exceed the share the testator could have. The second and third actions, subsequent to the first, are intended to recover from the assets of the forced heir the goods covered by the injurious provisions, rendered ineffective by the reduction action.

VALUATION OF THE INHERITANCE.

In order to determine the inheritance share we must proceed with  three actions provided for by art. 556 c.c.

a) Definition  of the estate. It is necessary, for the purposes of this operation, to ascertain which property the deceased left behind and to determine the value whichhad at the moment of the  passing, since in this moment it is defined the right of the lawful heir.

b) Debt deduction: is a calculation operation. Debts are not only those contracted by the deceased but also those arising on the occasion of death: funeral expenses, burial, publication of the will, seals posting etc.

c) Fictitious union of donations: To the net value of the inheritance, resulting from the two previous transactions, are added the assets the deceased has placed in life as a donation. This operation is called a “fictitious union” for its accounting feature. The value of the assets is calculated based on the value of the assets at the time of the opening of the succession. The costs of attendance, education, clothing and wedding expenses are not subject to a “fictitious union”.

One does not avoid the “fictitious union” (a purely arithmetic calculation) the donation made with dispensation from the collation; in no way can the donor prevent that the donations made by him in life are fictionally gathered pursuant to art. 556 c.c.

ACTION OF REDUCTION

The reduction is, therefore, the specific mean granted to the lawful heir to have declared against him/her the ineffectiveness of testamentary dispositions and donations that have infringed his/her intangible rights to the reserved share.

According to the dominant doctrine, this would be an ineffective subsequent action, total or partial, of the act of disposition. The reduction judgment does not transfer the assets to the estate of the deceased but operates in such a way that the transfer carried out by the deceased with the injurious provisions is deemed not to have taken place against the heir.

REDUCTION ORDER

The legislator establishes an order in which it is necessary to proceed to the reduction of the prejudices to the legitimate heir: firstly, there is the reduction of the legal shares ab intestato; then there will be the reduction of the testamentary provisions, and, finally, if not even with these provisions the inheritance can be integrated, it will be necessary to proceed to the reduction of donations.

CONDITIONS CONCERNING THE REDUCTION

Art. 564 c.c. provides two conditions for the heir who intends to act in reduction: acceptance with the benefit of inventory (exceptions aside) and imputation of all that he/she has received, by inheritance or donation, from the deceased.

In fact, art. 564 c.c. says: “the heir who has not accepted the inheritance with reservations cannot ask for the reduction of donations and bequest, unless donations and bequests were made to people called as co-heirs, even if they have given up the inheritance”.

The second paragraph of art. 564 c.c. establishes: “in any case the heir who requests the reduction of donations or testamentary provisions, must charge to his/her legitimate portion the donations and bequests made to him/her, unless it has been expressly dispensed“.

LIMITATION PERIOD FOR REDUCTION PROCEEDINGS.

The limitation period for the exercise of  reduction action shall be 10 years. There are conflicting views both in doctrine and in case-law as to when the ten-year limitation period begins to run. The first guidelines were in favor of considering as the initial moment that corresponds to the opening of the succession (therefore from the death of the de cuius) (see in the same sense judgment 4230/1987 for which it is not relevant the identification of the moment when the heir discovered the reduction of his/her reserved share).

Subsequently the orientation begins to consider as the initial moment of the course the term that corresponds to the publication of the will (then after the death of the de cuius) (See also judgment 5920/1999). It is only from that moment, which gives rise to a presumption of knowledge of the injurious provisions, that the forced heirs are in a position to assert their right and demand the reduction of the provisions adversely affecting their reserved share, since, from that date, until proven otherwise, they know the injurious provision.

On this point, the Court of Cassation of the United Chambers intervened and resolved the disputes in the matter, considering that the initial moment of the lapse of the limitation period corresponds to the moment when the forced heir wants to proceed and hence, in case of testamentary provision, at the time when the heir designated by the de cuius accepts the inheritance, whereas in the case of donation, the limitation period starts from the moment of the opening of the succession (death of the de cuius) because at that moment the injurious provision is perfected against the heir.

For Further Information, Please Contact:

Lawyer Luca Salvi

Phone: +390697996050

luca.salvi@ssalex.com