The so-called "mortis causa" acts (or "on account of death") are those in which the event of death, precisely, is decisive either for the conclusion of the act itself or for the effects of acts already concluded.
Below, we will see a summary of the main types of these acts, always highlighting the importance of direct consultation with the Notary, an expert in inheritance law.
TESTAMENT
A will is the act by which someone disposes of their assets for the time after they have ceased to live.
It is a very important and delicate act because it allows the individual to determine the fate of their estate for the time after their death, even differently from what is provided by the civil code or special laws.
It can be: public, holographic, or secret.
The first (public will) is the one received by the Notary in the presence of two witnesses and kept by the Notary in separate records (those of last wills) and secret. No one will know about its existence except the Notary and the offices to which its existence must be communicated. Obviously, it is also the one, among the three, that allows the testator to be most certain and protected in expressing their will, as it will be reduced to writing by the Notary within the limits of the law and in the most appropriate legal manner.
The holographic will is the one that the testator writes entirely by hand, including the date and signature, in the tranquility of their own home without the need for witnesses and without disclosing their wishes to anyone else. It is the most delicate because it is exposed to the risk of theft, destruction, alteration, loss, contestation regarding the author's capacity to understand and will, doubts about the author's identity, and the interpretation of the writing.
The secret will, finally, is the one that can be written by the testator or even by a third party (but signed in this case on each half sheet by the testator, not just at the end), even by mechanical means (not necessarily by hand) and delivered to the Notary in a sealed envelope for deposit, which takes place in the presence of two witnesses by means of a specific record that remains in the Notary's records of last wills. The advantage is that the formal deposit with the Notary guarantees the testator against theft, loss, or destruction by third parties.
All three types of wills can be amended or revoked by the testator at any time, even with a will of a different form from that adopted for the one to be revoked, until the last moment of their life. Revocation can also be tacit, meaning modifying the testamentary provisions contained in another previous will.
The advice is always to consult a Notary so that they can explain in more detail all the peculiarities of each type of will and assist the testator in its content.
PUBLICATION OF THE WILL
The will, whatever its form, to produce effects (obviously after the testator's death) must be published by a notarial deed or move from the Register of Last Wills to that of Acts between Living, always with a record drawn up by the Notary, in this case the same one with whom it was deposited.
BIOLOGICAL WILL (from the website: www.notariato.it)
The issues of advanced healthcare directives, commonly referred to as "advanced directives", "living will" or "biological will", have been addressed by the notarial profession since January 2004 when the topic was the subject of a multidisciplinary conference (notaries, doctors, judges) held in Cagliari.
Recently, the proposals made by the Veronesi Foundation and the text of a statement of will distributed by Prof. Umberto Veronesi, as well as legislative initiatives in the matter, have made it necessary to ensure the certainty of the origin of declarations regarding healthcare treatments, their temporal "currentness" and their availability.
Objectives and situations achievable through a notarial intervention aimed at ensuring the added value of certainty provided by the public certification function, in compliance with the operating methods set by the law; as already happens, for example, in the choice of the support administrator with regard to the care and interests of the beneficiary's person in anticipation of the possible future incapacity of the latter (Article 408 of the civil code).
The assessment of providing one's ministry in the specific case can only be made by the individual notary, both for ethical and legal considerations. For this reason, the District Notarial Councils present in the national territory will prepare a list of available notaries.
Moreover, the National Council of Notaries, based on the results achieved in the field of information technology and technological innovation by the profession, on several occasions has expressed its willingness to establish and maintain a "General Register of living wills", at its own expense, in order to satisfy the need for archiving and awareness of the provisions contained in the "biological will".
In respect of individual self-determination and the legal dignity of the patient, the notarial profession believes in its role of "social utility" at such an important moment in each of our lives, and makes its reflections and insights available for the identification of the most effective legal instruments pending legislative action.
Currently, several agreements have been reached between the Notarial Councils of numerous Districts and the respective Municipalities to establish Registers for the collection of advanced healthcare directive declarations. They can always be found on the website www.notariato.it.