The later will and the incompatibility of the provisions

A later will that does not expressly revoke a previous will annuls the latter only insofar as it is incompatible with the provisions of the previous will. Revocation can also be achieved through an act that is incompatible with one or more clauses of a previous will.

The legislator exhaustively identifies the acts having the value of tacit revocation , such as: the drafting of a subsequent will incompatible, in whole or in part, with the previous one or containing an express declaration of revocation; the destruction, tearing or cancellation of the holographic will; the withdrawal of the secret will; as well as the alienation or transformation of the thing which is the object of the legacy.

• Regulatory continuity and favor wills
• The principle of conservation of the legal transaction
• Applications of the principle of conservation in the context of wills
• Article 682 of the Civil Code and coordination between successive wills
• Objective incompatibility of testamentary provisions
• Subjective or intentional incompatibility
• Doctrinal debate on the scope of application of Article 682 of the Civil Code
• Allara and Talamanca's criticisms
• Chronological succession of wills and proof of the date

Regulatory continuity and favor wills

The compatibility of two successive wills is governed by the provision that a later will, in the absence of express revocation, annuls the earlier will only insofar as it is incompatible. This provision reproduces, in a more concise manner, Article 920 of the previous Civil Code, allowing for substantial continuity in the acceptance of the principle " potius ut valeant, quam ut pereant" in testamentary matters.

The principle of conservation of the legal transaction

The provision in question constitutes a direct application of the principle of preservation of the legal transaction , expressed generally in Article 1367 of the Civil Code and readily extended to wills. According to this provision, in case of doubt, clauses must be interpreted in the sense in which they can produce effects, rather than in the sense in which they would be ineffective.

The systematic force of the principle also emerges in the contractual sphere, as demonstrated by Articles 1419, 1420, 1424 and 1432 of the Civil Code, which privilege, in various cases, the preservation of the legal act over its lapse.

Applications of the principle of conservation in the context of wills

The principle of preservation also finds broad application in inheritance law. Article 625 of the Civil Code, for example, excludes the annulment of a testamentary disposition vitiated by an error in the designation of the heir, legatee, or res , when the deceased 's intention is clearly apparent from the context or external evidence.

Further applications are found in Article 607 of the Civil Code, which allows an invalid secret will to be considered a holographic will, and in Article 634, according to which impossible or illicit conditions are considered as not having been added.

Article 682 of the Civil Code and coordination between successive wills

Article 682 of the Civil Code fits into this systematic context, regulating the effects of the later will and coordinating it with the earlier one in order to safeguard, as far as possible, the compatible wishes of the testator .

To this end, the interpretation is based on two distinct criteria: that of objective incompatibility and that of subjective or intentional incompatibility.

Objective incompatibility of testamentary provisions

Objective incompatibility occurs when there is a material impossibility of simultaneous execution of the provisions contained in the two wills, regardless of an intent to revoke.

Typical examples are the appointment of two different universal heirs in successive wills or the attribution of the same asset, as a legacy, to different persons, as well as the attribution of the same asset to the same person, but under different titles in the two wills.

Subjective or intentional incompatibility

Subjective incompatibility occurs when, although the coexistence of the provisions is abstractly possible, the circumstances as a whole reveal a will that is incompatible with the previous ones.

This is the case of a first will containing exclusively legacies that exhaust the entire estate and a subsequent will that establishes a universal heir: in this case, it is presumed that the new provisions are intended to revoke the previous ones.

Doctrinal debate on the scope of application of Article 682 of the Civil Code

According to some scholars, Article 682 of the Civil Code exclusively governs cases of objective incompatibility, due to the principle of formalism that governs testamentary revocation.

The prevailing view, however, qualifies the case as a hypothesis of tacit revocation due to conclusive conduct , based on a presumed will to revoke deducible from the conduct of the deceased .

Allara and Talamanca's criticisms

Allara and Talamanca oppose this approach, according to which the ineffectiveness of the previous provision does not derive from an implicit revocation intention, but rather from the objective incompatibility with the subsequent provision.

According to this theory, the ineffectiveness of the previous provision constitutes an essential element of the case, necessary to make the implementation of the subsequent provision possible, and could not be excluded even by a formal protest by the testator.

Chronological succession of wills and proof of the date

The rule presupposes a chronological succession between wills. If the will specifies a date and time, the relationship is easily ascertainable; otherwise, as in a holographic will, proof can be provided by any means.

In the absence of a certain ascertainment, a long-standing case law holds that only reconcilable provisions are effective, while incompatible ones, including revocatory clauses contained in both wills, remain ineffective.

To learn more about wills, you can consult with the Agenzia delle Successioni, which can provide you with the best possible guidance.