The Will of the Non-EU Citizen and the Choice of Law Applicable to Their Succession

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The EU Court of Justice clarified this in ruling no. 21 published on October 12, 2023, which will also allow non-EU citizens residing in Italy to draft a public will and choose the law applicable to the entire succession, to that of the law of their country of origin.

The ruling put an end to a dispute between a Ukrainian citizen residing in Poland and a Polish notary who had refused to draft a will containing a clause stipulating that the Ukrainian law would apply to the woman’s succession.

Considering that as of January 1, 2023, there are 5.05 million foreigners legally residing in Italy, representing 8.6% of the total population, and that this number is expected to grow, and foreigners are much more accustomed than Italians to drafting a will, the significance of this ruling by the Court regarding the interpretation of the rules of Regulation (EU) No. 650/2012 on international successions can be understood even by us Italians.

The death in Italian territory of a foreign citizen implies several problems for the heirs, the first of which is the identification of the law applicable to the succession. For this reason, one of the first actions to be taken is precisely to verify the existence or not of a will and, in case of one, to verify whether among the provisions drawn up, the testator has chosen the law applicable to their succession or not.

Pursuant to and for the purposes of Article 22 of the Regulation applicable also to the non-EU foreign citizen residing in Italy, the testator may choose to apply to their succession, instead of the law of the State in which they habitually reside, the law of the State of which they are a citizen at the time of the choice or at the time of death, and in the case of persons with multiple citizenships, they may choose the law of any of the States of which they are a citizen. This possibility has been regulated with the aim of allowing the testator to maintain cultural ties with what they perceive as “their own country,” making any transfers to other countries irrelevant.

Therefore, if the heirs find a will and within it the deceased has chosen Italian law because it is the law of the country of residence, the testament must be presented to an Italian notary who will oversee its publication. Once the will is published, regardless of the location of the assets of the estate passed down through succession, the entire succession will be governed by Italian law, which will be directly applicable based on the aforementioned Regulation. If, on the other hand, the choice of law is that of a non-EU state, for the publication of the holographic will, the heirs must turn to a legal representative of that country since the designated national law will also regulate this aspect.

If, however, the foreign citizen has drawn up a will without indicating any applicable law, or has not drawn up any will, the first necessary “operation” that must be carried out will be to ascertain the habitual residence of the deceased.

The Regulation – replacing the traditional criterion of the citizenship of the deceased (provided for by Article 46 of Law No. 218/1995) – provides as a general rule that the succession is governed by the rules of the State in which the deceased had their “habitual residence” at the time of death.

The law applicable to the succession is very important because it governs the devolution of the inheritance in the absence of a will (intestate succession), the rights of the forced heirs in the presence of a will (necessary succession), the validity of succession agreements, and many other aspects, which are often regulated differently in the legislations of different States, thus deeply affecting the allocation of the inheritance.

Thus, the second operation that the heirs will have to perform is to gather information to determine whether Italy was the habitual residence of the deceased. Habitual residence, regardless of the registered residence, according to the Court of Justice of the European Union, is constituted by the “place where the person has established, with a voluntary and stable character, the permanent or habitual center of their interests,” it is understood that, to determine the place of habitual residence, all the factual elements that contribute to its constitution must be taken into account.

Its determination will depend on “a comprehensive assessment of the circumstances of the deceased’s life in the years preceding their death and at the time of death, taking into account all the relevant factual elements, in particular the duration and regularity of the deceased’s stay in the State in question, as well as the conditions and reasons for it,” leading to the identification of “a close and stable connection with the State in question.”

In general, it can be said that the character of the habitual residence depends on the presence of two elements, one objective and the other subjective: the objective element will be constituted by the temporal duration of a person’s stay in Italian territory, the nature and characteristics of this stay, the presence or absence of the family and social network (e.g., a stay for work during the workweek with systematic returns to the UK on weekends where the deceased had their family does not constitute habitual residence in Italy), while the subjective element will focus on the reasons for staying in Italy and the existence or absence of an intention on the part of the deceased to establish in our country with the character of stability, the main center of their life and business interests through the verification of a series of concrete data (e.g., the opening of a bank account, the taking out of medium or long-term bank loans, the request for a residence permit, etc.), choices that, by their nature, provide evidence of the serious and effective intention of a person to reside permanently in a given place.

In particular, the presence dictated solely by professional reasons (such as carrying out work activities) does not constitute the notion of “habitual residence” in a State.

If an analysis of the personal and property situation of the deceased reveals their habitual residence in a State other than the Italian one where the person died, the heirs will necessarily have to turn to a legal representative of that country since the designated national law will regulate the most important aspects of international succession.