Transnational succession: the case of the 'double' succession of an English citizen who owned real estate in Italy
Pavia e Ansaldo Studio Legale, Rome
Pavia e Ansaldo Studio Legale, Rome
The question submitted to the Corte di Cassazione involves a case of transnational succession concerning an English citizen domiciled in the United Kingdom who owned real estate located in Italy and died in Italy in 1999.
The (Italian) spouse of the deceased claimed that the succession of her husband was governed by English law by virtue of the nationality of the deceased and, therefore, that the will drawn up by the deceased before his marriage should be considered revoked under English law. In fact, according to the Wills Act 1837 in force in the UK, a will is automatically revoked by the testator's subsequent marriage.
Conversely, the other heirs argued that the succession of the deceased was governed by Italian law and, consequently, the will was not to be considered revoked but was valid and effective.
Transnational succession in English and Italian law
Under Italian private international law the 'principle of unity and universality of succession' requires that the entire asset shall be subject to a single law: the national law of the testator at the time of his/her death ('connecting factor of nationality'). In other words, in the Italian legal system, all the rights and obligations included for the testator's asset are transmitted to the heirs in proportion to their shares, regardless of the nature, origin or location of the single good.
The principle of unity and universality of succession may counter the national law of the deceased (applicable by virtue of the connecting factor of nationality), leading to the adoption of the so-called 'criterion of splitting/division of succession' and thus reference to a different law.
In particular, this occurs in common law countries (and some civil law countries), where succession is subject to different rules depending on the nature and situation of the assets that are included in the estate.
Judgment No 2867/2021 of the Corte di Cassazione: the 'double' succession of an English citizen who owned real estate in Italy
Italian law No 218/1995 on private international law resolves the conflict between the different national laws potentially applicable to matters with transnational elements.
The judge, after categorising each issue according to the criteria of qualification of his/her own national system ('lex fori') shall identify the specific rule of private international law applicable to the case.
According to such a mechanism, the Corte di Cassazione categorised the revocation of the will under Italian law (by virtue of the lex fori), qualifying it as a matter of succession (although under English law it falls within the scope of marriage). Therefore, the Corte di Cassazione held that the case was governed by the rules of private international law on succession (in particular, Articles 13 and 46 of Italian law No 218/1995).
Article 46 of Law No 218/1995 provides that, in the absence of a different choice made by the deceased, succession shall be governed by the 'national law of the person whose estate is involved'.
Therefore, the court identified the national law of the deceased, English law, as the law regulating the succession.
The applicability of English law could give rise to some problems of coordination because it adopts the criterion of division; that is, it 'retains the English regulation of movable property', but 'refers back' to Italian law for the regulation of the succession of immovable property.
In other words, English private international law 'splits' the rules applicable to succession according to whether the deceased's assets are movable or immovable: the succession of movable property is governed by the law of the deceased's last domicile, while the succession of immovable property is governed by the law of the place where such property is located (the so-called 'lex rei sitae'), in this case, Italian law.
Such 'referring back' operated by English private international law is 'accepted' in the Italian legal system under Article 13 of Law No 218/1995.
Consequently, coordination between the Italian and English rules of private international law determines the split between the movable and immovable property of the deceased.
Therefore, two successions are opened and two hereditary masses are formed, each subject to different laws. The succession of movable property is governed by English law (due to the Italian law 'referring' to the English law), according to the criterion of the deceased's last domicile. The succession of immovable property is subject to Italian law (due to the English law 'referring back' to the Italian law), according to the criterion of lex rei sitae.
According to the Corte di Cassazione, the 'splitting' of the succession of movable and immovable property is not contrary to the 'principle of unity and universality of succession' laid down by Italian law, provided the national law of the deceased 'refers back' to Italian law.
In any event, in order to avoid possible coordination difficulties in transnational succession, Italian law allows the deceased to submit his/her entire succession to the law of the state of his/her residence.
This option, however, may be exercised only by means of an express and unequivocal declaration in the form of a will, provided it does not prejudice the rights recognised by Italian law to legitimates residing in Italy.