1. INGEGNERI DEL PATRIMONIO®
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INGEGNERI DEL PATRIMONIO®
MILANO
Via A. Manzoni n. 25
PESARO
Via Del Teatro n. 6

2. Trusts in Italy Andrea Vicari Doctor of Juridical Science (Cornell)
Int'Tax Prog. Cert. (Harvard)
Dottore di Ricerca in Diritto Comparato
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3. Modern History of Trust in Italy.
Hague Convention entered in force in Italy 1992
Theory of “Trust Interno” (1992), according to which the Hague Convention allowed recognition of trust where all elements, exept the governing law, were located in Italy (settlor, beneficiaries, trustee, assets);
Practice of “Trust Interno”: rapid evolution since 2000;
Case law: hundred of cases since 2000;
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4. 1) the contribution of Jurists; 2) the operation of Judges.
Fitting the concrete operation of trust into Italian civil law principles, through
1) the contribution of Jurists;
2) the operation of Judges.
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5. The Italian civil code and the French heritance.
French civil code shows the widest presence, among civil law countries, of mandatory rules limiting the private autonomy in the law of contracts and the law of succession.
All of these rules are present in the Italian Civil Code.
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6. These rules and principles are, apparently, often conflicting with the operation of trust.
Italian legal theory and case law, once exposed to the effect of the Hague Convention, had to deal in the reconciliation of these rules and principles with the working of trust in Italy.
In general, the conclusions reached were unanimous: the trust does not conflict, in abstract, with these rules but it should not, in concrete, violate them.
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7. No general obstacles to the recognition of trusts.
Case by case approach.
No general obstacles to the recognition of trusts.
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8. Main areas of debate and controversy
Trust and the concept of ownership.
Trust and the principle of numerus clausus of real rights.
Trust and the principle of the unity of patrimony.
Trust and the rule against fideicommissum
Trust and the rule against pact of succession
Trust and the protection of reserved share to family members.
Trust and the requirement of “causa” for the validity of legal transactions and trasfer of property.
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9. Trust and the concept of ownership.
The trustee’s as a fiduciary ownership.
Concept of full ownership in the civil code as explanatory concept and to fix a intangible core of rights and powers annexed to ownership.
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10. Trust and the numerus clausus of property rights
The Beneficiary’s right as belonging to the law of obbligations.
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11. Trust and the principle of the unity of patrimony
The law of ratification of the Hague convention as the source for the exception to the principle of unity of patrimony.
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12. Trust and the rules against the fideicommissum
Pratice prefers intevivos trust.
The trust does not contrast with the rule against fideicommissum because it cannot be qualified as fideicommissum since, if inter-vivos, trusts assets are not transfered at the time of death and, in any case, because the trustee, contrarly to the fiduciary in fideicommissum, does not with withdraw any utility from the trust assets (“Tribellian quarter”).
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13. Trust and the rules against pact of succession
Italian law establishes that all pacts involving a future succession are void.
Trusts are not treated as pacts of succession whenever they are created inter-vivos and beneficiaries are appointed during the life of the settlor.
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14. Trust and forced heirship
Trust in violation of the reserved share: a matter of claw back of transfer of assets and not invalidity of the trust.
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15. Trust and causa
The requirement of causa in concrete for legal transactions and transfers of assets.
Causa for the transfer of assets into trust and causa for the trust deed.
The analysis of the trust deed: coherence of the content of the provision with the declared purpose in the preamble
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16. Conclusion
Italian experience as a good source of arguments, analisys, and solutions for fitting the concrete operation of trusts into civil law of East Europe countries.
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