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Why a professio iuris clause in your Sydney will may leave your Tuscan apartment under Italian forced heirship rules — and what changed in December 2025
Roughly 47,000 Australians are estimated to own real estate in Europe, with Italy consistently among the top three destinations. Most of them have an Australian will. A significant number have added a nationality-law clause after reading that EU law allows it. Fewer than a handful — typically only those who have spoken to Italian counsel — know that the clause can fail for the Tuscan apartment and succeed for everything else, producing a split succession governed by two different legal systems at once.
That is not a theoretical problem. It is the default outcome when the renvoi mechanism kicks in, and the December 2025 reform of Italian forced heirship enforcement makes it more consequential than it was twelve months ago.
Professio iuris is the Latin term used in EU succession law for a testator's formal choice of the law that governs their estate. Under Article 22 of Regulation (EU) 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance of authentic instruments in matters of succession — known as the EU Succession Regulation or Brussels IV — any person may elect the law of their nationality to govern their entire succession. That election must be made expressly in a declaration in the form of a disposition of property upon death, or must be demonstrated by the terms of such a disposition.
Australia is not an EU member state. That does not disqualify an Australian testator. Article 22(1) of the Regulation explicitly permits nationals of third countries — including Australian citizens — to elect their nationality's law. Italy applies the Regulation as directly effective EU law. A will prepared in Sydney that contains a well-drafted professio iuris clause is therefore legally effective in Italy as a choice of law.
So far, so good. The difficulty arrives one article further on.
The short answer is: yes, in principle — but the principle has a significant exception for real estate.
Article 34 of the EU Succession Regulation introduces renvoi: if the law chosen by the testator (here, the applicable Australian state's succession law) would itself refer back to the law of the place where immovable property is situated — the lex situs — then Italian courts may apply Italian law to that property instead. Most Australian states treat the succession of land as governed by the law of the place where the land is located. New South Wales, Victoria and Queensland all follow this position under their choice-of-law rules for immovables.
The practical consequence is stark. An Italian court applying Article 34 of the Regulation alongside Article 13 of Italian Private International Law (Law 218 of 31 May 1995, Legge 31 maggio 1995 n. 218) can accept the professio iuris for movable assets — bank accounts, investments, personal property — while rejecting it for the Tuscan apartment and applying Italian succession law to that property instead. The estate divides. Movables follow Australian law. The apartment follows Italian law.
This is the scenario most competitor commentary on 'choose your nationality law' never mentions. The election partly succeeds — and the part that fails is usually the most valuable asset.
Probably not for the apartment, and the analysis goes further than renvoi alone.
Even if an Italian court were persuaded to accept the professio iuris for the real estate — either because the applicable Australian state law does not itself refer back to the lex situs, or because the court takes a more generous approach to Article 34 — a second override applies / operates. Italian courts have consistently held that forced heirship rules form part of ordine pubblico internazionale, the Italian equivalent of international public policy. Under Article 35 of the EU Succession Regulation, any provision of foreign law may be refused if its application is manifestly incompatible with public policy. Italian forced heirship — the quota di riserva, the forced heirship share — has repeatedly been treated by Italian courts as one such rule.
Under the Italian Civil Code (Book II, Title I), a testator with one child must leave at least one-half of the estate to that child. Two or more children are entitled to two-thirds between them. A surviving spouse holds a one-quarter share. These proportions apply to the net estate, adjusted for lifetime gifts under the accounting process known as collazione.
Unlike in Australia, where a testator has broad freedom to distribute their estate and adult children have only discretionary statutory claims under family provision legislation in each state, Italian law gives qualifying heirs a direct, automatic entitlement that cannot be waived in advance and does not require a court to exercise any discretion. There is no Australian equivalent of the forced heirship share.
Until recently, a forced heir who had been cut out of the Italian apartment could apply to the court for restitution of the physical property itself, even from a buyer who had purchased in good faith after the testator's death. That remedy — the azione di restituzione — made Italian real estate commercially awkward: a buyer could find themselves defending a claim years after completing a purchase.
Law 182 of 20 November 2025 (Legge 20 novembre 2025 n. 182), which entered into force in December 2025, reformed this mechanism. A forced heir may no longer pursue an innocent third-party buyer to recover the physical property. The right of restitution against subsequent purchasers who acquired for value and in good faith has been extinguished. The forced heir retains a monetary claim against the estate and, where assets have been dissipated, against the recipient of the original transfer — but the apartment itself, once sold on, is protected.
For an Australian testator who intends to leave the Italian property to one child only, this reform has two effects that pull in opposite directions. The child who receives the property gains better protection against claims from siblings after a future sale. But the testator cannot use the reform to assume that the forced heirship share has disappeared: the monetary claim against the estate remains fully intact, and the estate must have sufficient other assets to satisfy it or the dispute continues.
An Australian testator whose will pre-dates December 2025 and whose solicitor in Sydney is unaware of this change should treat the next will review as urgent.
Nemo plus iuris ad alium transferre potest quam ipse habet — no one can transfer to another more right than they themselves possess. The maxim applies here with uncomfortable precision: a professio iuris clause transfers to the testator only as much legal certainty as the interplay of Italian, EU and Australian conflict-of-law rules allows.
The structural problem is that Brussels IV was designed for intra-EU estates. Its renvoi rule at Article 34 was drafted with the assumption that most law elections would involve EU member state laws. When an Australian testator elects Australian law, the Regulation's own machinery may redirect the analysis to Italian law via the very Australian conflict-of-law rule that treats land as governed by its location. The result is a loop: the testator elects Australian law, Australian law says 'look at where the land is', Italian courts look at Italy, and Italian forced heirship applies.
This interaction between EU Regulation 650/2012, Article 13 of Law 218/1995, and the lex situs approach embedded in Australian state law is rarely explained in the English-language material aimed at expats. The Australian Law Reform Commission has not addressed this specific EU interface. No Australian state succession statute mentions Brussels IV.
Without a professio iuris clause of any kind, the default rule under Article 21 of Regulation (EU) 650/2012 applies: the law of the country of habitual residence at the time of death governs the whole estate. For an Australian resident who dies in Australia, that means Australian law applies by default — subject to the same renvoi mechanism for real property described above. The practical outcome is often identical to having a bare nationality election.
Where there is no will at all, intestate succession (successione legittima) applies in Italy to any Italian-situs property that Italian courts hold falls under Italian law. The Italian Civil Code's intestacy rules distribute assets among the surviving spouse and children in fixed proportions, with no discretion. A partner who is not legally married receives nothing under Italian intestacy, regardless of the length or nature of the relationship.
Locate your current Australian will and read the governing-law clause. If it says 'I elect Australian law' without specifying which state law, that ambiguity alone is worth correcting. Australia has no uniform succession law: New South Wales, Victoria, Queensland and Western Australia each have their own statutes.
Confirm whether your Australian state's private international law treats immovable property as governed by the lex situs. If it does — and for most Australian states it does — the renvoi risk is live.
Have the Italian property's title deed (the notarial deed of sale, rogito notarile) and any existing Italian will reviewed together. An Italian will does not cancel an Australian one; both can coexist, but they must be coordinated or one will partially override the other in unexpected ways.
Consider whether the estate outside Italy has sufficient liquid assets to cover the forced heirship share in cash. Under the Law 182/2025 framework, a monetary settlement is now the realistic outcome for a disappointed forced heir — but only if there is money to pay it.
Obtain a land registry search (visura catastale) to confirm the current registered ownership and any encumbrances. This document is required for any succession procedure in Italy and is not equivalent to an Australian title search.
In our files, the most common problem with Australian wills and Italian property is not the absence of a professio iuris clause — it is that the clause exists but was drafted without any reference to the renvoi issue. The Australian solicitor inserted the election in good faith; the Italian property was listed in the will's schedule; nobody checked whether New South Wales (or Victorian, or Queensland) conflict-of-law rules would undermine the very election being made. We also see cases where the Australian testator assumed that electing Australian law resolved the forced heirship question entirely, without appreciating that Italian courts treat the quota di riserva as an ordine pubblico matter that sits above any choice-of-law clause.
My Australian will says 'I choose Australian law.' Is my Tuscan apartment automatically covered?
Not automatically. The election is valid under Article 22 of EU Regulation 650/2012, but Article 34 of the same Regulation allows Italian courts to redirect the question to Italian law if Australian conflict-of-law rules refer land succession back to the place where the property sits. For most Australian states, they do. The apartment may still fall under Italian succession law even with a well-drafted election clause.
Can Italian forced heirship be cut out by choosing Australian law in my will?
Very unlikely for the Italian property. Even where a court accepts the professio iuris, Italian forced heirship is treated as part of international public policy under Article 35 of Regulation (EU) 650/2012. Italian courts have consistently applied it regardless of the foreign law elected. Your children and surviving spouse retain their forced heirship shares in respect of Italian real estate.
Does the December 2025 reform mean my forced heir can no longer claim the apartment?
Law 182/2025 removed the right of a forced heir to recover the physical property from an innocent buyer who acquired it after the estate was distributed. The forced heir retains a monetary claim against the estate. The apartment is better protected once sold on, but the underlying financial entitlement of the forced heir has not been abolished.
HREFLANG BLOCK:
Editorial Team — Panato Law Firm Staff
