The title of the paper refers to the instruments for devolving an estate that offer alternatives to the will, allowing the settlor to exercise autonomy in the disposal of assets, in other words to derogate from the discipline of the successione legittima (legal succession: forced inheritance by the operation of law in the event of intestacy or the invalidity of a will or when the will disposes of only part of an estate) and, where this is allowed, from that of the successione necessaria (forced inheritance by the operation of law protecting the interests of the relatives of the deceased (ascendant, spouse, descendant) if the will ignores their rights or if the deceased’s assets have been transferred to other persons during his lifetime by other legal instruments, circumventing the legal rules of forced inheritance). Rather than tackling the theme by looking at the rules of positive law and how they apply to individual cases, I have preferred to adopt a different stance and to start by considering the practical requirements of individuals in relation to positive law. In truth, the title reflects both sides of the law – positive and customary – since a system of fair institutions is always based on the conjunction between the two sides of the law: the formal and the procedural, the informal and the customary. If there exists a practice that tends to regulate succession in ways other than by the legal forms (and exist it does), this is because there are criticalities in the present point of equilibrium.
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