A recent English case, Perdoni v. Curati, has highlighted a potential problem for people from the Italian community over the proper interpretation of their wills. The family involved in the case were fairly typical of many Italian nationals who migrated to the UK but retained strong ties with the part of Italy where their family originated.

Mrs Curati’s family had moved to London after the first World War. She was born in England.  They owned a restaurant.  They returned regularly to their hometown in Italy where, one summer, Mrs Curati met her future husband.  He moved to London and they married.

Although their home and their work was in London, they also owned property in Italy either through inheritance or by purchase. They had talked about living in Italy in their later years if they were well enough.

All of this was considered by the court in order to determine their domicile at the time a will was prepared in 1994.

The particular issue of the case was that wills made in England in 1980 left their respective estates in England to each other whom failing to a niece and a nephew, who were the children of Mrs Curati’s brother.  Wills in 1994 were made in Italy in which the deceased named his wife as his “erede universale” or sole or universal heir.  There were no whom failing provisions in the 1994 wills.  There was also no specific revocation of earlier wills.

The wife predeceased and the question was whether the whom failing provisions in the 1980 will in favour of the nephew and niece took effect or whether the estate fell into intestacy, which would mean Mr Curati’s sister would inherit. 

What it demonstrates is that what is by no means an unfamiliar or unusual pattern can have a bearing on which legal system will apply to the interpretation of wills, in this case either English law or Italian law.

In the circumstances of this case, the judge decided that Mr Curati was domiciled in England and English rules would apply.

The court required to read the two wills together to see if the intention of the deceased could be established.

The arguments on each side were as follows:

• On the one hand, the 1994 will made no reference to the 1980 will in that it simply restated that if Mrs Curati survived she should inherit the whole estate.  It was silent as to what should happen if she died first and so the provisions of the 1980 will in that respect remained.
• On the other hand, the 1994 will effectively revoked the provisions of the 1980 will because there was deliberately no repetition of the whom failing provisions.  This implied that he was no longer concerned about the effect of her predeceasing and was happy to allow the rules of intestacy to take effect.

What was particularly interesting was that the judge decided that if Italian law had applied the result would have been an intestacy.  He had decided that English law would apply and that under English law the result was that the whom failing beneficiaries should benefit.

Conclusion

The circumstances of Mr Curati were no different for many in the Italian community living in Scotland.  They are very likely to retain a strong attachment to their Italian roots.  They are very likely to have property of some kind in both countries.  They may well have wills in both countries.

Mr Curati’s estate in England was worth £2m so there was obviously a lot at stake.  However, regardless of the size of the estate, this story demonstrates the need for care in planning how your estate will pass on your death where you are in a similar position to him.

The court made its own decision about which law was to apply based on its interpretation of events and the outcome was different because of the view the court took.

What is needed is a careful review of what the intentions are and that these are properly documented. Although inheritance tax was not an issue in this case, that too is something which should not be left in doubt.

For more information please contact Alan Sharp or Marika Franceschi.

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