With judgment no. 19376/2017 the Italian Supreme Court of Cassation returns to pronounce on trust

Last August, the Italian Supreme Court of Cassation stated that in the event of discretionary trusts’ revocation, the only lawful to stand in trial, in addition to the debtor, is the trustee, the only one who has the right.

In the case, two spouses, respectively the actual holder of the trust and the trustee, challenged the second-instance ruling declaring the ineffectiveness of the trust-forming act against the lending bank, which acted in revocation, without, however, ordering the appeal of the beneficiaries of the trust. The applicants therefore demanded the invalidity of the entire proceedings for breach of the principle of the contradiction.

Recalling its consolidated orientation, found in judgments n. 25478/2015 and n. 2043/2017, according to which the destination of the goods would not affect the ownership of them, the Supreme Court dismissed the appeal. According to the Court the trust’s beneficiaries are not required litigants in court, since they are not holders of a subjective right.

The judges identify in the trustee, in which is entrusted the protection of the fund, the sole reference point in relations with third parties that has legal capacity pursuant to art. 11 of the Aja Convention. Since the trustee is not considered a legal representative but holder of a right, beneficiaries are not considered as necessary parts of the trust revocation process but they can act or to be called by the trustee in order to avoid to be compromised in case of revocation.