Revocation of donation.

A donation is the contract by which so-called acts of generosity (enrichment of another’s estate out of a spirit of liberality) are crystallized, but there may be situations in which revocation of the donation becomes (even) necessary. In this short article we will analyse what the prerequisites are for obtaining revocation.

How is revocation of a donation obtained?

Revocation of a donation is a legal procedure that allows the donor to cancel the transfer of ownership of a property he has previously donated to a person or organisation.

As we will see later, revocation of a donation can only be requested in the case of specific circumstances and is, in fact, a legal action that requires the intervention of a lawyer.

Remind that a donation, on the other hand, is an act of liberality in which a person transfers ownership of a good to another person free of charge.

Once the donation has been made, the donee becomes the legal owner of the donated asset.
However, the donor may wish to revoke the donation for different reasons, such as a change in personal or financial circumstances, or if the donee has not fulfilled the agreements made at the time of the donation.

In general, it may be stated that

With regard to an action for revocation, it is necessary to carry out a thorough examination of the contents of the deed of gift that is to be revoked and it is not sufficient to refer to a deed by means of which the defendant has donated the property owned by him . Where it is not possible to know the exact terms of the donation agreement (nor can the production of a mere land registry certificate help in this respect) in the absence of the production (and therefore full knowledge of the content) of the deed of gift, any investigation as to the existence of the requirements of Article 2901 of the Civil Code is precluded, since it is impossible to know the impact of a deed of unknown content on the settlor’s assets. Court of Brescia sez. IV, 08/01/2021, n.24

What are the prerequisites for revocation?

Revocation of a donation can only be requested in certain circumstances. The following are some examples, but we would point out that there are many different cases. One such case, the most frequent in fact, occurs when the donee has committed a serious offence against the donor. For example, if the donee has mistreated the donor or committed a crime against him, the donor has the right to revoke the donation.

Furthermore, the donation may be revoked if the donee does not comply with the agreements made at the time of the donation, e.g. if the donor had specified the use of the donated property and the donee has not complied with it.

To summarize, therefore, in order to be able to obtain revocation, these circumstances must be present:

A) ingratitude of the donee (Art. 801 of the Civil Code) – i.e. if the donee has committed particularly serious acts against the donor or the donor’s assets;

B) survival of children or descendants (Art. 803 of the Civil Code) – i.e. if the donor has children or descendants or discovers that he has them after the donation.

Ingratitude

It seemed right to the legislature that if the donor had foreseen that the generous act performed by him would provoke not the gratitude but, the hostility and ingratitude of the donee, he would certainly not have made the donation. And so Article 801 of the Civil Code describes the conduct that qualifies as a manifestation of ingratitude, first of all mentioning the conduct that gives rise to an indemnity of succession, pursuant to Article 463, numbers 1, 2 and 3 of the Civil Code.

In any case, therefore, the revocation of the donation must be justified and can only be effected by a court ruling. The ‘donor’ must prove the presence of the (valid) reasons mentioned above in order to obtain a judgment revoking the donation.

The criterion for defining the behaviour of the donee as abusive, relevant under Art. 801 of the Civil Code The criterion for defining as insulting the behaviour of the donee, relevant pursuant to Article 801 of the Civil Code, can be derived from common feeling, as an attitude contrasting with the feeling of gratitude and esteem that should naturally characterise it: in this sense, the behaviour of a son who defines his mother as insane, who has not seen her for years and who has applied, albeit without success, for her judicial interdiction (stating on record, moreover, during one of the hearings relating to the interdiction proceedings, that he had not seen his mother for years because there was a dispute over the division of property between him and his sister) can be considered insulting and outrageous. – Court of Cassino sec. I, 04/02/2021, no. 143

Serious insult.

The provision also refers to serious insult as a ground for revocation. The hypothesis does not coincide with the criminal offence of insult and defamation, but consists of any conduct concerting an offence against the moral personality of the donor or damaging the decorum and social image of the same.

It may also consist of a single act, as repeated conduct is not required. The seriousness of the insult is obviously left to the appreciation of the judge

Is it possible to revoke the sale made by the donee?

Clearly, revocation of the gift may only be requested if the donated property has not been sold or transferred to another person.
The transfer, of course, must be free of fraud. That is to say, the purchaser must not have covered up the donor who knew of the imminent action for revocation of the donation. There must not, therefore, be any simulated assignment. Proof of this on the part of the donor would lead to a further revocation of the deed of gift by the donee.

What are the tax implications of revoking the donation?

It is important to note that the revocation of a donation can have significant legal and tax consequences. For example, if the donation was made in order to obtain a reduction in income or estate taxes, revocation of the donation could result in the reinstatement of evaded taxes. In addition, if the donation was made to a non-profit organisation, revocation of the donation could result in the reinstatement of previously evaded tax benefits.