A few weeks ago (23 January 2025), the Italian Supreme Court (Corte di Cassazione) delivered its judgment No 1632/2025, which, overturning the decision of the Court of Appeal of Firenze, resolved a dispute on the applicable law to a cross-border succession of an Australian woman died in Italy in 1994.
The claims submitted by the deceased’s son aimed at annulling his mother’s will and at establishing the ineffectiveness of the sales of her real estate complex located in Italy. Alternatively, he requested the reduction of the provisions infringing his reserved share.
The Court of Appeal applied to the action for annulment Australian law, as the law of the deceased nationality pursuant to Arts 23 and 30 of preleggi, since the succession had been fully concluded with the heir’s acceptance of the inheritance before the entry into force of Law 31 May 1995 No 218. Consequently, neither the renvoi of the foreign law to another legal system could be taken into account, nor could the reduction action be upheld, as it was not contemplated by the foreign law governing the succession.
The judgment is noteworthy for two reasons: (i) it addresses the temporal scope of the provisions of Law No 218/1995, and (ii) it provides an interpretation of the national PIL rules concerning succession matters.
As per the first point, Art 72 of Law No 218/1995 states that the new PIL law applies to all proceedings initiated after its entry into force, without prejudice to the applicability of the previously existing rules of private international law to situations that were concluded before that date. Accordingly, the Court stated that “as long as succession-related matters have not been settled by a final judgment, no other preclusion has occurred preventing the possibility of challenging its structure, or the limitation or forfeiture periods for asserting potential inheritance rights have not expired, the succession cannot be considered concluded”, so that “it must be ruled out that the applicability of Law No 218/1995 depended exclusively on the date on which the status of heir was acquired through acceptance of the inheritance” and that “the acceptance of the inheritance, while establishing the appointed heir as the universal successor to the exclusion of other potential heirs, had not made the testamentary disposition unassailable, if only because the time limits for challenging it in order to seek its annulment were still pending” (point 2.1).
As for the second point, the Court stated that the Court of Appeal “erroneously excluded the applicability of Law No 218/1995, which upholds the renvoi contained in foreign law to another legal system. It failed to take this into account, despite acknowledging it, as Australian inheritance law includes a referral provision to the law of the location of the immovable property. This renvoi [to Italian law] could not be disregarded when assessing the merits of reduction action… concerning immovable property located in Italy. This is because Australian law appears to regulate only the succession of movable assets and immovable property situated in Australia, resulting in the creation of two distinct hereditary estates, each governed by its applicable law” (point 2.1).
The text of the judgment is available here.
On these topics, the readers of RDIPP may refer to:
Roberta Clerici, 1995, No 4, 1133 ff.;
Andrea Giardina, 1995, No 4, 1265 ff.;
Luigi Fumagalli, 1997, No 4, 829
Luigi Fumagalli, 2000, No 4, 931 ff.;
Domenico Damascelli, 2003, No 1, 85 ff.
Moreover, see, in our Book Series:
Fausto Pocar, Tullio Treves, Sergio M. Carbone, Andrea Giardina, Riccardo Luzzatto, Franco Mosconi, Roberta Clerici, Book No 50;
Patrizia De Cesari, Book No 54.