Italy: The Wills Of Silvio Berlusconi: A Reflection On Italian Succession Laws And The Testamentary System

Introduction:

The passing of Silvio Berlusconi, multiple times Italian prime minister and one of the richest man in Italy, has left a significant void in the country's landscape. Beyond the political and personal ramifications, his death brings to the forefront the importance of understanding Italy's testamentary system and the intricacies of succession laws and especially in the context of high-net-worth individuals. At the time of his death, Silvio Berlusconi's net worth was estimated to be over 3.6 billion euros.

This article aims to shed light on the demise of Berlusconi while exploring the functioning of the testamentary system and the broader concept of succession in Italy.

Understanding Testaments and Succession Laws

In Italy, the testamentary system allows individuals to plan the distribution of their assets and designate beneficiaries upon their demise. A testament, commonly referred to as a will, is a legally binding document that outlines the wishes of the testator (the person making the will). Italian law provides various options for testators, including holographic wills, notarial wills, and secret wills. Each type has its own requirements and formalities, ensuring the validity and enforceability of the document.

• Holographic Wills: Simplicity and Formalities:

Holographic wills, known as "testamento olografo" in Italian, are handwritten by the testator and do not require any formalities. While this type of will offers simplicity, it is essential to meet specific criteria for it to be legally valid. The testator must write the will in their handwriting, include the date, and sign it. However, no witnesses are necessary for holographic wills to be recognized by Italian law.

• Notarial Wills: Professional Guidance and Formalities:

Notarial wills, or "testamento pubblico," involve the assistance of a notary public. This type of will requires the presence of the testator, the notary, and two witnesses. The notary ensures that the will complies with legal requirements, accurately reflects the testator's wishes, and confirms the mental capacity of the testator during the process. Notarial wills provide an added layer of security and are more commonly used when complex estate arrangements or significant assets are involved.

• Secret Wills: Confidentiality and Formalities:

Secret wills, referred to as "testamento segreto", offer a higher level of confidentiality. They are written by the testator or by a third party at their request and must be sealed in an envelope. The testator then delivers the sealed envelope to a notary public, who keeps it in safe custody. Unlike notarial wills, secret wills do not require witnesses. Upon the testator's death, the notary publicly opens the sealed envelope, reads the will, and ensures its proper execution.

Silvio Berlusconi's wills belong to this last group of testaments. Written in 2006, 2020, and 2022, they are all holographic wills, having all the characteristics required by law and, therefore, at least formally valid.

Moreover, it will be necessary to verify whether these wills are correct not only from a formal perspective but also from a substantial perspective, otherwise, they may be contested by the heirs for violation of their rights reserved by the law on succession.

But, how succession Laws work in Italy?

The main principle of Italian succession law is the “protection of the family”. As result of this, some heir cannot be excluded from the succession, even if a will establish it. Therefore, even in the case of a testamentary succession, a part of the assets (reserved quota) must be assigned to forced heirs. The other part (available quota) can be assigned to everyone. These forced heirs include the spouse, the children, the ascendants (i.e., parents, grandparents), brothers and sisters and other relatives up to the sixth degree.

In the case of Silvio Berlusconi, we are dealing with a person with 5 children but not married. Therefore, the share that would have been reserved by law for his children would be 2/3 of the estate. The remaining 1/3 could have been given to anyone, even someone unrelated to the family.

However, Berlusconi decided to leave his entire available quota to his two eldest children, Marina and Piersilvio, while leaving the legitimate share to all 5 children in equal parts, as provided by the law.

The third document creates much interest as Silvio Berlusconi requests four of his five children to "donate" a total sum of 230 million euros to his long-time partner Marta Fascina (€ 100 mln), his brother Paolo Berlusconi (€ 100 mln), and his friend Marcello Dell'Utri (€ 30 mln).

This document was written shortly before Berlusconi's hospital admission in 2022. Indeed, the opening phrase of the document states, "if I don't return from San Raffaele (the hospital)” . However, after the hospitalization, Berlusconi did return home from the hospital. This means that the heirs could potentially take legal action seeking the ineffectiveness of those donations because they were subject to a resolutory condition.

As often happens in such cases, the succession could lead to a bitter and lengthy legal dispute.

Conclusion:

The passing of Silvio Berlusconi highlights the significance of testamentary planning and the complex system of succession in Italy. Understanding the various types of wills and the applicable laws surrounding their creation and enforcement is crucial for individuals seeking to distribute their assets according to their wishes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.