TESTAMENT. – It is the act by which a person disposes, for the time when he shall have ceased to live, of all his property or part thereof (Italian Civil Code, art. 587).
I. Concept
A testament is a solemn and formal act; that is to say, its validity is dependent upon the observance of certain forms established by law which are unalterable. It confers upon the instituted heir the status of heir in the strict sense when the attribution of goods is made by universal title, that is, comprising the entirety of the testator’s estate or a quota thereof; it is understood, however, that individual goods or complexes of individual goods may also be bequeathed by testament as part of an inheritance when this is expressly stated or manifestly apparent that they are attributed as a quota of the patrimonial estate. If, on the other hand, disposition is made of individual goods as such, that is, by particular title, what results is a simple legacy (cf. art. 588). The law prohibits the making of a single testament by several persons, even if the heir or legatee is ultimately one and the same person; it also prohibits the same act from containing a reciprocal testament, that is, reciprocal testamentary dispositions (art. 589); however, it is not prohibited to draw up two or more testaments in favor of the same or different persons, or even with reciprocal dispositions by two or more testators, on the same sheet or series of sheets.A testament is essentially revocable, that is to say, it is not omitted that it is conceived and executed in such a way that the testator cannot subsequently change what he has disposed by testament; every clause or condition contrary to this norm is devoid of legal effect (art. 679). Revocation of a testament may be effected by a new testament or by an act received by a notary in the presence of two witnesses, provided that in this second case the testator declares his intention to revoke the previous testament in whole or in part (art. 680); the aforementioned revocations may in turn be revoked under the same conditions, thereby juridically reviving the testament that had previously been revoked (art. 681). A new testament that does not expressly revoke the previous one or ones annuls only those prior dispositions that are incompatible with it (art. 682). Likewise, a testament may be revoked by destruction, tearing, or erasure; however, this may be done only by the testator with the intention of altering in whole or in part the previous dispositions (art. 684). Finally, dispositions by universal or particular title made by one who, at the time of the testament, had no children or descendants or was unaware of having them are revoked by operation of law upon the existence or subsequent birth of a legitimate child or descendant of the testator, whether posthumous, legitimated, or adopted, or upon the recognition of a natural child (art. 687), unless the testator has made provision for the case of the possible existence or recognition of children and in any event provided that the children or descendants actually come to the succession.
Conditions precedent or resolutive are permitted in testaments (art. 633); however, they are considered as not written if they are impossible or contrary to imperative norms, public order, and morality (art. 634), or if they impede first or subsequent marriages (art. 636), or if they are made dependent upon reciprocity (art. 635).
Both ordinary substitution (arts. 688–91) and fideicommissary substitution (arts. 692–99) are permitted: with the former, the testator may substitute another person for the heir he has instituted in the event that the instituted heir cannot or will not accept the inheritance; with the latter, the testator imposes upon his child the obligation to preserve in whole or in part the goods constituting the disposable portion (not, therefore, the legitim, which cannot be encumbered) for the benefit of all the children already born or yet to be born of the heir, or for the benefit of a public entity; similarly, he may impose this obligation upon a brother or sister likewise instituted as heir. In matters of inheritance, no other cases of fideicommissary substitution are permitted (art. 692).
2. Forms
The Italian legislator provides for two different forms of testament: the ordinary and the special. The ordinary form comprises two species of testament, the first of which, the classical, is the holographic testament; the second is the testament made by notarial act. The special form is reserved for wholly exceptional cases expressly contemplated by law.The holographic testament (art. 602) must be written in its entirety by the testator’s own hand, from beginning to end; the writing must be such as to serve as proof: thus, typewritten, stenographic, and similar writings are excluded; however, a testament written in pen, pencil, on paper, metal, parchment, and similar materials is considered holographic, whereas printed matter, typescript, or any other mechanically produced writing is excluded. The holographic testament also requires the testator’s signature; in addition to the full name, pseudonyms that leave no doubt as to the testator’s identity are recognized as signatures, and under the same condition signatures consisting of a nickname or simple initials or attributions that, in relation to the heir, imply the identification of the testator (e.g., “your father,” “your mother,” “your paternal grandfather,” “your maternal grandmother,” etc.); in any case, the signature must be placed at the end of the testamentary dispositions. The indication of the date, including the day, month, and year, is also indispensable; such indication may be implicit provided it is of certain interpretation (e.g., “Christmas Day of the first year of the pontificate of Pius XII”); the indication of the hour is not required.
The testament made by notarial act may be public or secret: a) in the public testament (art. 603), the testator declares orally to the notary, in the presence of two witnesses, what he intends to dispose; the notary writes it or has it written by others in longhand; then the notary himself, never by proxy, reads to the testator what has been written or dictated under his supervision and containing the testamentary dispositions; in the public testament, it is indispensable to add to the date also the hour at which the testator signed, with an indication of the place where the testament was received; b) the secret testament (arts. 604–605) may be written, even by mechanical means, by the testator or by a third party on his behalf; if it is written by a third party or mechanically, the testator must sign each individual sheet by his own hand; the whole is then closed in an envelope or other sealed packet and sealed; it is then brought to the notary, who, in the presence of two witnesses, records that the packet contains the testator’s testament; finally, the notary draws up the act, which is preserved according to law.
With regard to special forms: 1) in the case of epidemic, public calamity, or accident, the testament is drawn up by the person receiving it, who signs together with the testator and two witnesses; the testament must be received, without exception, by a notary or by the local magistrate (*pretore*), conciliator, mayor, or minister of religion.
1. The testator must write the will entirely in his own hand, from beginning to end; the writing must be such as to serve as proof: therefore, block letters, shorthand, and the like are excluded; however, a holographic will written in pen, pencil, on paper, metal, parchment, or similar materials is valid, excluding all printed matter, typewritten texts, or writings produced by mechanical means. A holographic will must also be signed; besides the name and surname, pseudonyms that leave no doubt as to the testator’s identity are recognized as signatures, as are signatures with only a nickname, initials, or attributions that, in relation to the heir, identify the testator (e.g., "your father," "your mother," "your paternal grandfather," "your maternal grandmother," and the like); in any case, the signature must be placed at the end of the testamentary dispositions. The date, including the day, month, and year, is also indispensable; this may be implicit as long as it is clearly interpretable (e.g., "Christmas Day of the first year of the pontificate of Pius XII"); the hour is not required.
A notarial will may be public or secret:
a) In a public will (art. 603), the testator declares orally to the notary, in the presence of two witnesses, what he intends to dispose; the notary writes it down or has it written down by others; then the notary himself—never through a substitute—reads aloud to the testator what has been written or dictated and contains the testamentary dispositions; in a public will, the date must also include the hour at which the testator signed, along with the place where the will was received;
b) A secret will (art. 604–605) may be written, even by mechanical means, by the testator or a third party; if written by others or mechanically, the testator must sign each individual sheet by hand; the whole is then closed in an envelope or other sealed packet and taken to the notary, who, in the presence of two witnesses, is told by the testator that the packet contains his will; finally, the notary draws up the deed, which is preserved according to law.
As for special forms:
t) In the case of an epidemic, public calamity, or accident, the will is drawn up by the person receiving it, who signs together with the testator and two witnesses; the will must be received without fail by a notary, the local magistrate (*pretore*), the conciliator, the mayor, or a minister of worship;