What are the formalities to follow for a secret will?

The paper on which the testamentary dispositions are written—or the wrapper in which it is enclosed—must be sealed with an impression in such a way that the will cannot be opened or extracted without breaking or altering it.

The testator, in the presence of two witnesses, personally hands over the sealed paper to the notary, or seals it in the required manner in the presence of both the notary and the witnesses, declaring that the enclosed document contains their last will and testament. If the testator is mute or deaf, they must make this declaration in writing in the presence of the witnesses and must also declare in writing that they have read the will, if it was written by someone else.

On the document written or enclosed by the testator—or on an additional wrapper prepared and duly sealed by the notary—a record of receipt is written. This record includes: the fact of delivery, the testator's declaration, the number and impression of the seals, and the presence of the witnesses for all formalities.

The record must be signed by the testator, the witnesses, and the notary.

If the testator is unable to sign the record of delivery due to any impediment, the rules applicable to public wills are followed. All formalities must be carried out consecutively, without interruption or the drafting of other documents in between.

This article examines all the formal requirements for executing a secret will.

How should the testamentary document be delivered?

The delivery of the testamentary paper serves the function of allowing its deposit and safekeeping by the notary and constitutes an essential formality for the secret will. The delivery is a strictly personal act and cannot be delegated or performed by a representative, whether in writing or orally. This is due to the personal nature of the will and the need to prevent substitution of the document.

Personal delivery does not necessarily mean brevi manu. The testator may indicate to the notary the location where the will has been stored and ask the notary to retrieve it in the presence of the testator and witnesses, after verifying its identity.

If delivery is missing or is defective due to the lack of personal execution, the will is voidable.

The document may be delivered to the notary open or closed. If closed, it may or may not already be sealed. However, for the secret will to be valid, the document must be sealed so that none of its contents are visible from the outside and it cannot be opened or removed without breaking or altering the seal.

How must the will be closed and sealed?

Once the testator has written the testamentary document, directly or through another person, they must ensure it is closed in such a way that no content is visible from the outside.

If the document cannot be folded without leaving written sections visible, it must be wrapped in a blank sheet or placed in an envelope. If both outer pages are blank, the paper may be simply folded onto itself.

The sealing involves applying an impression over the seal to prevent the will from being opened. This is an essential formality of the secret will, ensuring:

• the confidentiality of the testamentary provisions;
• the authenticity of the testator’s document;
• the integrity over time, preventing unauthorized alterations.

The law does not require that the sealing and closing be done in the presence of the notary or witnesses. Thus, sealing may take place at any time before delivery. It can even be done by the notary beforehand, acting as a third party. The law does not specify the method for sealing or closing. The will may be folded, wrapped, or enveloped, and any sealing system that ensures inviolability is valid.

The record of receipt for a secret will

The record of receipt is a public document and can only be drawn up by a notary. Its key characteristics are:

• strict formalism, ensuring the irreplaceability of the document and the personal nature of the will;
• the presence of witnesses throughout all formalities—they may not leave, even during the drafting of the record;
• simultaneity and continuity, as required by law.

The formal process begins with the personal delivery of the sealed document by the testator to the notary, in the presence of the witnesses. Upon delivery, the testator must declare that the envelope contains their will—thus affirming their intent and not merely acknowledging a fact.

No specific wording is required, as long as there is no doubt that the delivered document is indeed the testament.

However, orality is required: if the testator cannot speak, the declaration must be made in writing, in their own handwriting, and must include a statement that they have read the will, if written by someone else. This formal interpretation implies that a mute person who cannot write cannot make a secret will.

If the testator cannot sign the will, they must declare, in the presence of the notary and witnesses, that they have read it and must specify the reason they could not sign it. The same applies if they cannot sign the record of receipt.

The record does not contain any contractual content; it merely certifies that the legal formalities have been performed. It is debated whether it may also include additional last will declarations.

Secret wills for persons with disabilities

If the testator is mute or deaf-mute, they must write, in their own hand (not mechanically), a declaration that the delivered document contains their will. This declaration must be placed on the document or its wrapper, at the top, margin, or back of the record—not inside it. This is because it is the first chronological event related to the secret will.

The record must then be read aloud to the person with a disability, who must write at the end—before the signatures—that they have read it and that it reflects their wishes.

For further assistance on drafting a secret will, its execution, and legal developments, you can contact Agenzia delle Successioni, where professional experts will guide you through the correct procedures.