Inheritance: the birth of a child does not invalidate the previous will

If the testator already has children at the time of drawing up the will, does this become invalid by operation of law in the event of the subsequent birth of a further child?

The Supreme Court (Cassation 18192 of 5 June 2026) ruled against this, in a case where the deceased had made a will in favour of his three children, but more than thirty years after his death, the paternity of a fourth child had been judicially established.

The Supreme Court – drawing on some of its previous rulings (Supreme Court, Order 18893/2017; 28043/2023; but see Cassation 169/2018) – has reiterated that the will of the deceased who, at the time of its drafting, already had children whose existence was known, in the event of the subsequent birth of another child, on the basis of the exceptional nature of Article 687 of the Civil Code, which provides for the different scenario where the will was drawn up by someone who had no children or descendants, or was unaware of having any. The Supreme Court emphasises that it would be precisely the ‘absolute’ absence of descendants at the time of will is the prerequisite for the application of Article 687, in that the legislature would have assessed the interests of those who have already experienced the filial bond (and therefore the obligations arising from parenthood) differently from those who have not yet experienced it.

Now, what proves decisive is the change over time in the structure of family relationships compared with the time the will was made: a structure that is certainly different in the event of the birth of even a single child (whether born within or outside marriage, provided that, in the latter case, the child is recognised). Moreover, if Article 687 of the Code (a provision to be classified as special rather than exceptional) were not to apply in such a scenario, this would result in an unjustified and unreasonable disparity of treatment between descendants, as well as a repugnant ranking of filial affection (a primacy of the first-born is, moreover, entirely anachronistic today).

Ultimately, this is not only a missed opportunity to promote the systematic impact of the parental status reformof 2012–2013 (which aims to place all children on an equal footing), but also a judicial ruling that raises serious doubts as to its compatibility with the constitutional and European legal framework.