In July 2019 Italy’s Supreme Court of Cassation affirmed that the suppression or voluntary destruction of a will can result in the perpetrator being excluded from succession (Cassazione n. 17870).
The court outlines two conditions for this sanction to be applied:
a) the suppression of a document that can be qualified as a will, or
b) the voluntary destruction of a will.
In cases where an heir is accused of suppressing a will, it is necessary to establish where the burden of proof lies. The recent jurisprudence suggests that the burden lies more with the defendant, in that the plaintiff need only prove the fact of the document’s removal and its probable testamentary nature, while the defendant must prove its non-testamentary nature, especially if they are the holder of the document.
In cases where an heir is accused of destroying a will, destruction of the document (even if the holder is not aware of its content) is sufficient grounds for exclusion from succession.
Exemptions from exclusion from a succession due to the destruction of a will
The doctrine does not apply sanctions, however, if it can be proven that obstruction of a will was done for purposes worthy of consideration, such as masking an unfortunate situation involving the testator or the family of the testator. It is also argued that a favored heir should not be sanctioned for suppressing the will in an attempt to more evenly divide the estate among the other heirs (as the favored heir would be acting against self-interest). Exemptions may also be made in cases where honest mistakes are to blame for suppression of a will.
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