On July 19, 2010, at 2:40 p.m., Mr X died at the “Weill Cornell Medical Center” hospital in Manhattan, New York City. Mr X, born in New York on May 8, 1934 and living there and domiciled in 66 Madison Avenue.

On 15.09.2010, Lawyer Y, having managed to obtain from relatives the death certificate of the de cuius (issued on August 11, 2010 by the civil registry officer of the Department of Public Health and Mental Hygiene of the city of New York provided with Apostille) and having a personal interest in the succession of Mr. X, proceeded to make an application before Dr. Z, notary in Velletri, for the publication and subsequent deposit of a holographic will that would be written by Mr. X on 29 September 2004.

As can be seen from the deed, from a formal point of view, this handwritten will is valid in the Italian legal system. International private law (l.218/1995) establishes, in fact, that the will is valid if it is considered as such by the law of the State in which the testator has made provisions (Italian law), or by the law of the State where the testator, at the time of the will or of his/her death, was a citizen or by the law of the State in which he/she had his/her domicile or residence.

In fact art. 602.1 paragraph of the Civil Code provides: “The holographic will must be written in full, dated and signed by the hand of the testator. The signature must be placed at the end of the provisions. Even if it is not made by indicating name and surname, it is nevertheless valid when it designates with certainty the person of the testator. The date must contain the indication of the day, month, year. Proof of the non-truth of the date is admitted only when it comes to judging the capacity of the testator, the priority of the date among several testators or other matter to be decided based on the time of the will“.

In the specific case, anyone with a direct interest can challenge the will for disability. The appeal consists in establishing a judgment before the competent Court for the territory quoting all the other heirs and legatees. The lack of the testator’s autograph legitimate, under the formal profile, the contestation of the will for nullity. Wills not written by the hand of the testator or drawn up with the intervention of a third party are void.

From a substantive law point of view, the will is not void but voidablewhere the testator has made a mistake or has suffered violence or malice. At this point, in the specific case, the defensive strategy for contesting this holographic will is as follows. First of all, the fastest way to go would be to proceed through the summons of all the heirs and legatees indicated in the will by contesting the domestic will due to forgery of the autograph and the signature of the deceased. As regards the citation of all the heirs and legatees indicated in the relevant holographic will, the problem arises against Attorney Y. In fact, as can be seen from the will, the same would have been appointed by Mr. X as executor. As a reward for his activity, Atty. Y will receive 5% of the value of the inheritance, plus expenses.

Actually, in the Italian legal system, the service of the will executor is free. However, the testator can establish a remuneration charged to the estate. This remuneration must be proportionate to the work of the executor, otherwise there would be the attribution of a donation as a legacy. Based on these premises, Atty. Y, since his/her remuneration is not proportionate to the work performed, would legally qualify as legatee and would have to participate in the judgment together with the other testamentary heirs. The deontological code applicable in the Italian legal system requires that the lawyer who intends to bring proceedings against a colleague for facts relating to the exercise of the profession must give him/her prior written notice, except if the warning may prejudice the right to be protected. If this procedure were to be complied with, the filing of the summons would be significantly delayed. Therefore, it will be preferable in the initial summons to quote only the heirs indicated in the will except for Atty. Y referring to the judge the decision regarding the need to participate in the judgment of lawyer Y.

In any case, with the lawsuit of forgery, both the content of the document as well as its provenance or attribution to the person who appears to be the author can be disputed.

Pursuant to art. 221 cpc “the complaint of forgery can be proposed both in the main proceedings and during the proceedings in any level of judgment, until the truth of the document is ascertained with a final sentence. The lawsuit must contain, under penalty of nullity, the indication of elements and proofs of the forgery and must be proposed personally by the party or by means of a special attorney, with a writ of summons or with a declaration to be attached to the report of the hearing. The intervention of the prosecutor in the process is mandatory”.

In Court, therefore, the claim of forgery brought against a holographic will must be corroborated by elements of proof such as, for example, the so-called comparative records. It is part of the evaluation of the judge in order to authorize the lawsuit of forgery, to examine whether the means of proof offered are suitable for proving the forgery of the will. For this reason, it is necessary to produce original documents of certain provenance (contracts, letters, trademark declarations, personal diaries of certain provenance, official deeds) drawn up by the de cuius during his/her lifetime in order to be able to make a comparison between these documents and the holographic will of dubious origin during the graphological examination.

In the judgment for the declaration of nullity of a holographic will, the graphological examination, which will be carried out within 3/4 hearings from the filing day of the writ of summons, must necessarily take place on the original of the document, since only in this can be found those elements that allow to trace the real author of the will. Where it appears that the writings being compared are very divergent from each other, the most presumable hypothesis is that the will was drawn up by a third person and can be declared null and void from the day it was drawn up. The indication of elements and evidences in support of the forgery complaint must take place according to the methods established by the procedural law and, therefore, in the case of testimonial evidence, by specific indication pursuant to art. 244 code civ., proc. of the persons to be questioned and of the facts, formulated in separate articles, on which each of them must be questioned. In reality, in the judgment of forgery, the proof of falsity of the document must be provided by the plaintiff, who can make use of any ordinary means of proof. New elements of falsehood cannot be deduced by the party after filing the lawsuit for forgery, given the special structure of the proceeding in which the elements of the forgery must be indicated, under penalty of nullity, in the complaint itself. And it is for this reason that it is particularly urgent to produce all the original documents drawn up by Mr. X and available to the family to be able to start the forgery proceedings. Also, in the writ of summons, after having asked the judge, principally, for the acceptance of the lawsuit of forgery of the holographic will, a request will in any case be made to acknowledge the applicability of the US succession law in the context of the succession in question. In fact, through the personal data of Mr. X, a request for certification was made at the Municipality of Rome relating to the residence and Italian citizenship of Mr. X.

Regarding the residence, the competent officials issued a NEGATIVE CERTIFICATE OF RESIDENCE, as it did not appear that Mr. X had ever been resident in Rome, Viale ……. (residence declared by the testator in the holographic will). However, there is no proof of Italian citizenship. The fact that Mr. X has never been resident in Rome DOES NOT EXCLUDE THAT HE MAY BE REGISTERED AS A RESIDENT in another Italian municipality and consequently have obtained Italian citizenship there. Based on this information (proof of non-residence in Rome neither at the time of death nor during life) and by virtue of the applicability of the  private international law  (l.218/1995) in the case in question, for movable property belonging to Mr. X (including photographic material) will be applied the law of the state of New York, while for real estate will be applicable the Italian law. In fact, art. 46l. 218/1995 establishes that succession due to death is governed by the national law of the person whose inheritance is involved, at the time of death. About the applicable jurisdiction, it is necessary to take into account the provision of art. 50 of the law 218/1995.

Art. 50 Jurisdiction in succession matters

 1) In matters of succession,Italian jurisdiction exists:

a) if the deceased was an Italian citizen at the time of death;

b) if the succession was opened in Italy;

c) if the part of the hereditary assets of greater economic consistency is located in Italy;

d) if the defendant is domiciled or resident in Italy or has accepted Italian jurisdiction, unless the claim relates to immovable property located abroad;

e) if the request concerns properties located in Italy.

With regard, then, to the fact that Mr. X could have prepared the holographic will in a state of incapacity to understand and want, this fact constitutes a further ground for challenging the holographic will in question. It will be useful, even after the filing of the summons, to produce Mr. X’s medical records in order to prove his incapacity which must be proven at the time of the will (2004). With regard to the proposed hypothesis relating to the fact that Mr. X could have disposed of that holographic will under the blackmail of a third party (another ground for contesting the holographic will), it will be necessary to indicate the person (as well as the contact details of the same) who may possibly testify on this circumstance during the trial.

For Further Information, Please Contact:

Lawyer Luca Salvi

Phone: +390697996050

Email: luca.salvi@ssalex.com