February 2022

Judgment of the Supreme Court on the Succession of Real Estate Acquired after the Drafting of the Will

The Supreme Court's decision No 1338/2021 was published, on the basis of which an appeal decision was upheld in relation to the fate of real estate acquired by the deceased after the drawing up of the will. The crucial question was whether property acquired at a time later than that of the making of the will would pass to the intestate heirs, relatives of the testatrix, or to the testatrix's friends honoured by the will. The Supreme Court affirmed the appellate decision stating the following: 'After the making of the aforementioned will, the following properties .....and .... became the property of ..... [...] Furthermore, it is proved that the assets bequeathed by the deceased to the defendants .... represented approximately 95% of the total value of the movable and immovable assets existing at the time of the drawing up of the will, a fact which is not specifically contested by the plaintiff... [...] On the contrary, the relationship between ... and the plaintiff's brother had been definitively broken since the summer of 1995, and in particular before the drawing up of her private will of 1-8-1995, and since then they have had no contact. [...] On these assumptions, the will of the testatrix ... as is clear from the interpretation of her private will of 1-8-1995, as stated in the main recital, was, on the one hand, to establish the defendants as the sole heirs of all her movable and immovable property, while the other testators were to be the sole heirs ....'. Therefore, based on the assessment of the relations of the deceased with her friends honoured by the will on the one hand, and her brother on the other hand, it was held that the subsequently acquired real estate passed to the heirs already honoured by the will and not to her brother, who would have been entitled to the inheritance even in the absence of a will. Moreover, on the basis of the settled case law of the Supreme Court, in order for the inheritance acquired after the drawing up of the will to accrue to the heirs intestate, the testator must have expressed the will (or the will must be manifested) that the right of inheritance of the heirs intestate should not be limited to their share (cf. Article 1802 of the Civil Code: 'If, in accordance with the will of the testator, the settlors were entered as the sole heirs and each of them settled in percentage and the percentages do not exhaust the lot, a corresponding increase in the percentages shall take place'). Such a case did not arise in the present case.