Disability, Trust and Special purpose Asset in the Italian Law System

Law 22 June 2016, no. 112 (so-called “after us” Law) substantially introduced the trust in Italy. It was issued with the stated objective of promoting the well-being, full social inclusion, and autonomy of people with disabilities. It is aimed at facilitating, through favorable tax regimes, the establishment of trusts, destination restrictions ex-art. 2645-ter of the Italian Civil Code and special funds governed by a fiduciary entrustment contract. On closer inspection, the “after us” Law, for its systematic contribution well beyond the tax-benefit purposes expressly mentioned, could be considered a first and albeit incomplete trust law, aimed at discouraging the establishment of trusts governed by a foreign law: this, since a large part of the elements indicated in art. 8 Conv. of the Hague so that a specific law can qualify as trust law. Certainly, relevant appear the subjective prerequisites for the application of the law and, in particular, the serious disability not determined by aging or pathologies related to senility and the absence of family support. Attention then focuses on the vexata quaestio of trust’s legal nature and its affinity with the deeds of patrimonial destination ex-art. 2645-ter of the Italian Civil Code, as well as with the fiduciary agreements.