QUOTA DI RISERVA E FAMILY PROVISION A CONFRONTO: LA SUCCESSIONE NECESSARIA IN UNA PROSPETTIVA DI COMPARAZIONE TRA IL SISTEMA ITALIANO ED IL MODELLO INGLESE

The aim of this work is to compare the “provision for family and dependants” in English legal system with the Italian discipline of forced-succession. The Italian Legal system establishes some fixed limits to one’s testamentary freedom, because of the fact that the “deceased person” is called to look after his/her relatives and to take care of their needs. On the other hand, in England the succession rule is the testamentary freedom. In 1938 the Inheritance Family Provision Act and in 1975 the Inheritance Provision for Family and Dependants Act introduced some limits to this testamentary freedom: the relatives of the deceased person, who did not received any amount from the “deceased re” can act and claim to receive a reasonable provision; however, this “provision” does not consist in a certain amount, but can be fixed by the judge case by case, considering all the relevant circumstances. The Inheritance Provision for Family and Dependants Act allows the dependant and the person who has been maintained by the deceased to ask for the provision, so that the right to have a provision is not limited to parents, sons and wife/husband. As it concerns the amount of the provision, if the Italian system establishes fixed amounts, the English legal system has much more flexibility than the Italian one and many factors have to be considered in determining the amount to be given to the plaintiff. Those factors are: if the plaintiff who asks the provision has his own goods and work or not, if the deceased had any debt towards the plaintiff or not, what is the value of the deceased “re”, if the plaintiff has psychological or physical problems or weakness, how the plaintiff treated the deceased when he/she was alive, how many years the marriage lasted, in case the plaintiff is wife or husband of the deceased. English law does not establish neither a minimum, nor a maximum for the provision, but the amount of it is up to the judge to be determined. The study of English case law can lead us to discover if the attribution of family provision is so frequent as one could expect it to be or if the provision is rarely allowed because of the uncertainty about the amount which can be obtained and about the possibility of obtaining it. The final aim of this work is to point out how family provision is used in English case law and if the “common law-way of thinking” is so far from the civil law one, to exclude an hypothetical harmonisation of the two “forced- succession disciplines”.