The generational shift is one of the most critical moments in the life of family businesses. The will, while being the key instrument of succession, clashes with the limits of legitimateness and with the needs of business continuity. The article analyses the relationship between succession law and corporate governance, highlighting how inadequate planning can generate instability and conflicts, up to compromising the very survival of the enterprise.

The moment of truth for the family business

The death of a great captain of industry never represents an exclusively private event: it triggers a real "earthquake" capable of shaking the foundations of corporate governance. In an economic system such as the Italian one, characterized by the centrality of family enterprises, the generational transition constitutes the point of maximum tension between succession law and business continuity.

It is not a mystery that Italian capitalism suffers from a structural fragility linked to succession, but rather than on generic estimates it is useful to look at official data. The AUB Observatory (AIDAF) (UniCredit) Bocconi, which represents the main empirical reference point on the topic, shows that the system of family enterprises is today crossed by a significant wave of exchanges: since 2010 approximately two thousand generational passages have been observed, with a marked acceleration in recent years. The Observatory itself also points out that over a third of family enterprises will be affected by a generational transition in the next decade, a share that could approach half in the presence of more evolved governance models. This data gives back the image of a system in which continuity is not automatic at all, but depends on the ability to manage a complex and prolonged process over time. In this context, the entrepreneur's tendency to identify the enterprise with himself and to postpone the planning of the replacement ends up transforming a physiological transition into a traumatic shock, with destabilising effects for employees, suppliers and markets.

The family business, in fact, is not a simple asset basket to be divided, but a complex organism that needs a unified management to survive on the market. Yet, as noted also in doctrine, the Italian succession discipline has long been considered inadequate compared to the need of the entrepreneur to transfer the company to his descendants. This approach generates a structural risk of instability: in the absence of adequate planning, the death of the founder can determine the fragmentation of the property, the emergence of conflicts between the heirs and, in the most critical cases, a real decision-block. The moment of succession thus becomes the test of the solidity of the enterprise and the foresight of the entrepreneur.

The will in Italian law: between autonomy and legal constraints

The starting point of the successionmortis causais represented by Article 587 of the Civil Code, which states that:

The will is a revocable act by which certain persons, for the time when they have ceased to live, have all or part of their own substances.

It is a unilateral, formal and personal legal shop, a direct expression of private autonomy. As evidenced by the popular doctrine, the foundation of the willary succession lies precisely in the protection of private autonomy.

However, this autonomy meets precise limits: the Italian law protects a small circle of subjects - the so-called legitimaries, i.e. the spouse, the children and, in their absence, the ascending ones - to whom a share of the heritage is reserved, regardless of the will of the testator.

It is in this context that a crucial distinction emerges in order to understand the impact of the will on companies. On the one hand, there is the transfer of assets, that is the distribution of the economic value of assets among heirs; on the other hand, there is the transmission of corporate control, which concerns the allocation of decision-making power within the company.

Succession and social participation: the risk of fragmentation

When the subject of the succession is social participations or shares, the succession law inevitably interweaves with company law. The shares become part of the hereditary axis and are transferred to the heirs according to the rules of the succession, with the immediate risk of a dispersion of capital.

 

The fragmentation of ownership can result in a fragmentation of decision-making power. In the presence of several heirs holding holdings, often with different interests and visions, the company can be exposed to internal conflicts and situations of decision-making deadlock. Corporate governance becomes the place where hereditary tensions occur. Criticalities can take different forms. On the one hand, the cohabitation between heirs can generate conflicts that paralyse the shareholders' activity; on the other hand, corporate rules can affect the sub-inheriting. In the societies of persons, for example, the transfer of participation is generally subordinate to the consent of other members, unless otherwise anticipated by social pacts. In companies with capital, the movement of equity is more free, but it can still be limited by specific statutory clauses.

 

In order to prevent succession from becoming a factor of instability, practice has developed tools for coordinating succession law and company law. The statutory clauses allow, for example, to regulate the sub-inheritance of heirs, providing for mechanisms of liking or pre-emptive rights. Alongside them, the parasocial pacts are a flexible instrument through which members - and, in the perspective, the same heirs - can regulate the exercise of voting rights, ensuring a unified management even in the presence of a fractional property.

Beyond the will: the need for integrated planning

In the light of the above, the will is confirmed as a central instrument for expressing the last wishes of the entrepreneur, but at the same time shows all its limitations when applied to the reality of the enterprises.

 

In this scenario, the legislator introduced a specific instrument: the so-called "Family Pact" (Family Pact) . Unlike the will, which operates only 'after', the family pact allows to manage the passage 'during'. It is a contract that allows the entrepreneur to transfer the company or the participations to one or more descendants while still alive, neutralizing in advance the future claims of the other legitimaries (which are immediately cleared). It is, in fact, the strongest derogation to the prohibition of successor pacts in our system, created precisely to prevent the sacredness of the 'legitimate' becoming the noose to the neck of the company efficiency.

The constraints imposed by the necessary succession and the complexity of the corporate dynamics make it difficult to reconcile the willary freedom with the need for business continuity.

It is precisely in this space of tension between the will ofde cuiusand the protection of the legitimates who integrate more evolved instruments, capable of anticipating and governing the generational transition. The stability of the enterprise, in other words, cannot be entrusted exclusively to the moment of succession, but must be built through a conscious and integrated planning, able to combine succession law and company law.

Case Agnelli

The complex hereditary story of Gianni Agnelli's heritage is what

paradigmatic litigation of international succession law, in which converge profiles

civil, fiscal and corporate of primary importance, with significant repercussions on the control structures of one of the main Italian industrial groups.

 

After the death of the lawyer Gianni Agnelli, in 2003, the center of the heritage

The Commission has also taken the view that the Commission's proposal to extend the scope of the Directive to include the following categories of undertakings:

exercise control over Exor and the main strategic holdings (including Stellantis, GEDI and Juventus) - has been the subject of a reorganization based on previous choices of family governance. In this context is the 2004 settlement agreement between Margherita Agnelli, and Marella Caracciolo, respectively daughter and wife of thede cuius, with which the first part of the project completely renounced its current and future hereditary claims, including in relation to maternal succession, against the payment of approximately €1.2 billion and the allocation of additional assets.

 

This agreement, subject to Swiss law, has determined the removal of Margherita Agnelli and her children born from the second marriage from all rights to the holding company

 

Since 2007, and with renewed intensity since 2020, Margherita Agnelli has promoted multiple judicial actions, in Italy and Switzerland, aimed at contesting the validity of the acts of successor. The reference to Swiss law is justified by the formal residence of thede cuiusin Switzerland, a circumstance which is appropriate to establish, in accordance with the rules of international private law, the possible subjection of succession to Swiss law.

 

The disputes are based, first, on the deduced nullity of the 2004 agreement for violation of Art. 458 of the Italian Civil Code, which establishes the prohibition of the succession pacts, i.e. of devices with rights to successions not yet opened. According to the proposed actor, the prior waiver of successor rights relating to a succession not yet opened would integrate a case nothing for opposition to the normTheThe dispute took on a new and decisive dimension in February 2019 following the death of Marella Caracciolo, wife of Gianni Agnelli, an event that formally opened the succession of the widow of the Advocate and rekindled the dispute over the legitimacy of the hereditary structures previously defined. In this perspective, also takes on importance the debate about the nature of public order of the prohibition referred to in art. 458 of the Italian Civil Code, with possible reflections on its application even in the presence of a foreign law regulating the relationship.

 

Second, the applicant Margherita Agnelli disputes the identification of the law applicable to the succession, arguing that the habitual residence of thede cuiusThe fact that the case is based in Italy and not in Switzerland is quite clear, since it would involve the application of Italian law - which does not allow successor pacts instead of the Swiss one, which instead allows, within certain limits, forms of planning aheady. The question is part of the wider framework of private international law and, for successions opened after 17 August 2015, would now be governed by Regulation (EU) No 650/2012, with particular reference to the criterion of the habitual residence of thede cuiusIt is also of particular importance in terms of taxation, as it has been investigated in relation to the actual residence of the tax authorities in the Member States.de cuius.

 

Other contentious aspects concern the alleged incompleteness of the information on the

balance sheet provided to Margherita Agnelli at the time of the conclusion of the agreement

The Commission has also proposed that the Commission should take the necessary measures to ensure that the Commission's proposal is implemented.

controversy concerning a significant collection of art belonging to Gianni Agnelli, whose ownership is also subject to dispute due to documentary uncertainties about the inventory of hereditary assets.

 

The Court of Cassation, with judgment n. 13203/2015 - concerning the request of Margherita Agnelli for a complete account of the father's patrimony -, excluded, in that specific seat, the validity of certain profiles of the alleged claims advanced; however, the dispute still pending, even in the light of factual and legal findings, including the death of Marella Caracciolo (2019) and the consequent opening of the relative succession, which has updated the questions relating to the validity and effectiveness of the agreement of 2004.

 

In this already articulated framework, a further procedural development is inserted: the request, by the defense of Margherita Agnelli, for the acquisition of the acts of a will holograph of 1998, with which Gianni Agnelli would have ordered the allocation of a 25% stake of the holding to his son Edward. According to the actor's proposition, this document, never formally revoked (art. 679 c.c.), would be suitable to highlight a possible discrepancy between the original will of thede cuiusThe Elkann's defence contests its legal relevance, highlighting, among other things, the care of the beneficiary (Article 687 of the Civil Code) and the subsequent covenant and willary regulations of the succession. In doctrine, such documents are generally assessed more in the inditimacy than in the device, in the absence of an effective impact on the final succession structure.

In conclusion, the hereditary story of the Agnelli-Elkann family shows how, in the presence of complex assets and articulated corporate structures, the use of negotiating instruments that may interfere with the prohibition of the succession pacts can generate long-term litigation, significantly affecting the control structure.

 

More generally, it shows how conflicts can primarily invest in the ownership of hereditary rights, making them unstableex postThe result is the need for a succession planning which is legally consistent with the mandatory rules of the applicable law and for the use of formally rigorous instruments such as the public will.exArticle 603 of the Civil Code - enabling legal certainty, protection of the willingness of the public and stability in the governance of business groups of strategic importance.

 

Old Man's Case

The success story of Leonardo Del Vecchio, founder of Luxottica, who died on 27 June 2022, is another emblematic example of convergence between successor law, company law and the governance dynamics of the large business groups, which however presents formal and substantial differences from the case Agnelli.

 

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After the death of the entrepreneur, the opening of the will, which took place in August 2022 by the act of the renowned notary Mario Notari, gave effect to a substantially equal distribution of the participations in Delfin among his six children, his wife Nicoletta Zampillo and Rocco Basilico, born from the first marriage of the widow, each holder of a quota equal to about 12.5%. This arrangement, formally in accordance with the principles of Italian succession law, is placed in the perimeter of the provisions of Articles 536 sqqq.c. in the matter of protection of the legitimaries, even if in the presence of a willary planning that has avoided, at least on the distribution plan, immediate disputes of injury of legitimacy.

 

However, in the initial phase, there are already significant legal problems related to the methods of acceptance of the inheritance, in some cases with the benefit of inventory pursuant to Articles 484 of the Civil Code, as well as the complex articulation between nude property and profit on certain corporate holdings, with consequent repercussions on the ownership and exercise of administrative rights, according to principles dehusible, not without margins of discussion, by art. 2352 of the Civil Code.

 

In the course of 2024, the ownership structure showed a growing rigidity, resulting from the equal nature of the distribution of quotas, which led to a situation of substantial decision-making deadlock. The eight joint heirs have equal shares, but not a common vision on how to manage a heritage of about 50 billion euros, and this inevitably creates tensions. Some dispute the implementation of the will, claiming that the equality of quotas does not guarantee a real balance in the decision-making powers. Moreover, the hypothesis that Leonardo Maria Del Vecchio, son of theof whichs and Nicoletta Zampillo, purchases of shares from other joint heirs raises doubts about the respect of the pre-emption and acceptance clauses (Articles 2355-bis and 2341-bis c.c.) and the correct assessment of the participations.

 

In 2025 a phase of mediation between heirs opens, aimed at overcoming theimpasseThe main issue is the assessment of

 

In 2026 the event knows a decisive passage with the green light of the shareholders' meeting of the holding company to the operation of redevelopment owner proposed by Leonardo Maria Del Vecchio. The latter is preparing to acquire the holdings held by Luca and Paola Del Vecchio (a total of 25%), increasing its share up to 37.5% and assuming a position of primary importance in the holding company. The transaction, realized also through a company vehicle (Lmdv Fin) dedicated and in compliance with the statutory clauses of pre-emption and approval, determines a significant concentration of the ownership structure, overcoming the fragmentation originated from the succession. It is therefore a functional instrument to the stabilisation of governance, despite the presence of persistent divergences between some heirs emerged in the assembly.

 

In conclusion, the hereditary story Del Vecchio shows that, even in the presence of a formally valid and effective will, the conflict can move from the plan of ownership of rights to that of their management. Unlike the case Agnelli - in which the litigation invests the validity of the acts and therefore the same attribution of the hereditary rights - in the case under consideration the main criticality concerns governance and the exercise of control. A basic fact emerges: in large business assets, effective succession planning cannot be limited to the distribution of quotas, but it must necessarily anticipate and regulate the decision-making mechanisms, the way in which participations are circulated and exit strategies, or the transformation of the conflict from successor to company, with potentially destabilising effects for the continuity of the enterprise.