Trust testamentario sottoposto a legge straniera e norme inderogabili di diritto successorio italiano. Un’analisi della prassi negoziale

Di Lucilla Gatt -

The operation of the trust, i.e. that form of patrimonial destination having a negotiated source based on foreign law models, still appears problematic in our legal system although more then thirty years have been passed not only since the signing of the Hague Convention on trust but, above all, from the diffusion of this figure in the Italian negotiation practice, a diffusion which, however, hasn’t been accompanied by a “serene” application of the (mandatory) rules of Italian law to this figure. The object of this investigation are some questions that emerge, in fact, from the real forms that trust takes in practice with specific reference to the so-called trust mortis causa. This is a trust created by a will drawn up in Italy but subject to a foreign law for explicit reference to it in the part of the act dedicated to the law that regulates trust. In this type of trust, a person, who is normally a legal person, is named trustee and, at the same time, universal heir of the entire inheritance. In this way questions arise on the limits of liability for the debts of the de cuius and on the application of the mandatory rules of Italian law to whom is universal heir and trustee at the same time. In other words, it is reasonable to wonder what remedies are available to creditors in order to protect their claims against the legal person that combines the qualities of the universal heir and trustee.