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Supreme Court case under consideration – 22840 of 28 October 2009 – representation in the hereditary succession

The scope of the “legal framework of representation”, both in the legitimate and the testamentary succession, is circumscribed by art. 468 c.c., in the sense that it takes place in favor of the descendants of the called who, in the straight line, is son and, in the collateral one, brother or sister of the deceased; As a result, descendants grandson ex filio  are excluded from the representation. 

Fonte: Giust. civ. Mass. 2009, 10, 1509

Representation in hereditary succession (art. 467 c.c.)

(I) The representation allow to the descendants to take over the place and the degree of their ascendant, in all cases where they cannot or will not accept the inheritance or the bound.

(II) It is represented in the will succession when the tester has not provided for the case where the institution may or will not accept the inheritance or the bound and provided that it is not related to the usufruct or other right of a personal nature.

 

Representation definition

Book II (Inheritances), Title I (General Inheritance Provisions) art. 467 of the civil code provides the notion of the institution representation in the hereditary succession.

Synthesizing what in the article quoted we can say that the representation is the right of the descendants (without any distinction, also known as representatives), to take over a bequest in the place (in place of) and in the degree (degree of identical kinship) of the ascending, in all cases these (the ascendant) do not want or cannot accept.

Hypothesis. Death of a parent. A mother’s renunciation. – See later examples

Some examples to better understand

A hypothesis of representation may refer to a father who is pre-dead to his father (grandfather of his sons).  So his sons, by representation, take over the grandfather’s inheritance.

Another hypothesis may be that the father, who renounces the inheritance of his father  perhaps because he is overburdened with debts. Again, his sons can take over for representation in his grandfather’s inheritance.

 

Who can take advantages of the representation

The following article 468 c.c. identifies those who can avail themselves of hereditary representation. The civil code recognizes that faculty towards “adoptive descendants” in a straight line with the de cuius (the one who died). This right is also recognized in favor of the collateral, that is, brothers and sisters of the deceased.

The right to representation is also recognized to descendants who have renounced the inheritance of their ascendant or who are unworthy or incapable of it in his incapacitated.

 

WARNING The grandchildren (by brother’s line), or cousins, cannot use this institution.

 

The right is granted to the conceived at the opening of the succession, since it is not possible in the institution under consideration to use the rule that attributes the ability to succeed by will even unborn children not conceived.

The natural brothers and sisters, extramarital's sons

Good news for children born out of wedlock.  A recent extension of the relationship to “all members of the family” of the natural parent (former art. 74 c.c.) means that among the representatives can also be contemplated the brothers and sisters of the deceased born out of wedlock.

 

Note: Previously, before the reform of family law, the call “of the natural brothers” was only possible in the absence of “legitimate” brothers but also other relatives within the sixth degree.

 

It is not possible for a stranger to take over the inheritance of the de cuius by representation. So, for example, a grandchild will not be able to happen by representation to uncle.

When the representation is applied, the division is made by lineage (ex art. 469, paragraph 2 c.c.)  that is, the descendants all take over in place of the forefather, regardless of their number and for equal dimensions even if the forefather has produced multiple branches. 

The reason of the Judgment 

The Supreme Court has expressed itself in this way because the rule leaves no way for further interpretation.  “The descendants of the third or further grade collaterals are excluded from the representation: it is that when … the established with a will are nephews ex fratre, and some of them cannot accept the inheritance because they are pre-dead to the tester, there is no place in the representation, because there is no institution of the brother or sister who, in the side line, is the person that the law considers to be represented“.

click here to download the judgment

 

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