Reduction of Donations: Commentary on Cass. civ., Section II, Ord. no. 19919 of 2024

The recent ordinance of the Court of Cassation, no. 19919 of July 19, 2024, offers an important reflection on the matter of succession, particularly on the reduction of donations and testamentary dispositions. In this case, the Court examined the issue of tacit waiver of the right to reinstatement of the forced share, highlighting the necessary requirements for such a waiver to be considered valid.

The Case Under Review

The dispute originated from an action brought by D.D., heir of E.E., against A.A., B.B., and C.C., heirs of F.F. D.D. argued that the donations made by E.E.'s husband had infringed upon her mother's forced share. The Court of Appeal of Palermo, with judgment no. 1438 of 2021, upheld the claim for reinstatement of the forced share, establishing that there had been no tacit waiver by E.E.

The Court of Appeal correctly excluded the tacit waiver of the right to reinstatement, stating that a disinherited heir can only waive the action for reduction through unequivocal conduct.

Legal Aspects and Implications

The Court emphasized that the intention to waive must be clearly expressed and cannot be inferred from ambiguous behavior or a mere omission to act. In particular, it was highlighted that tacit waiver cannot be inferred from the heir's participation in the stipulation of donations or from their inaction in a reduction proceeding. The Court of Cassation referred to established case law, stating that each forced heir has a right to their reserved share, and that the conduct of one forced heir cannot preclude another's right to assert their claims.

• The right to reinstatement of the forced share is autonomous for each forced heir.
• Tacit waiver must be unequivocal and cannot arise from ambiguous conduct.
• The final and binding nature of a judgment covers nullities and cannot be challenged in a court of last resort.

Conclusions

Judgment no. 19919 of 2024 represents an important reference in the regulation of successions and the reduction of donations. It clarifies that the protection of forced shares is fundamental and requires a clear and unequivocal manifestation of will by the forced heir. It is essential for heirs to be aware of their rights and of behaviors that could prejudice them. The Court of Cassation, confirming its established position, contributes to protecting fairness in successions by emphasizing the need for a rigorous interpretation of the intentions expressed by forced heirs.