Carmen Curati v Sylvana Marchant Perdoni and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lord Justice Munby,Lord Justice Pill |
| Judgment Date | 31 October 2012 |
| Neutral Citation | [2012] EWCA Civ 1381 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 October 2012 |
| Docket Number | Case No: A3/2012/0067 |
[2012] EWCA Civ 1381
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Justice Sales
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Munby
and
Lord Justice Tomlinson
Case No: A3/2012/0067
Mr Robert Grierson (instructed by Cree Godfrey & Wood) for the Appellant
Mr Nigel Thomas (instructed by Debenhams Ottaway) for the Respondents
Hearing date : 9 October 2012
This appeal concerns the effect of two wills made by Pierluigi Curati, ("the Deceased"), an Italian national born in 1927 who came to England in 1955 and lived here for the rest of his life. He died in 2008, having been predeceased by his wife, Emilia Perdoni, in 2007. Emilia Perdoni was born and brought up in England and was a British national, albeit her parents were Italians who emigrated to London after the First World War. Under the law of Italy women now apparently retain their maiden surnames. Since the Deceased and Emilia Perdoni married in England in July 1955 and lived here for the rest of their lives I will call the Deceased's wife, as did the judge, Mrs Curati.
Between 1955 and the late 1970s the Deceased and Mrs Curati worked and prospered in the restaurant trade. They had a restaurant in Camden which had until the mid-1950s been owned and run by Mrs Curati's parents. Shortly after the marriage of the Deceased and Mrs Curati in 1955 Mrs Curati's parents transferred the restaurant to their daughter and son-in-law. Thereafter they both worked in the restaurant. In about the late 1970s the Deceased and Mrs Curati sold the Camden restaurant. They invested the proceeds in buying properties in England, to add to a property portfolio they had already started to build up in England, which they let to third parties. In addition to this portfolio of investment properties, they also had their marital home in England.
The Deceased and Mrs Curati had no children. On 18 December 1980 the Deceased made a will in London written in English and drawn up as a formal document. It included the following terms:—
" I… DECLARE this to be my last Will –
" 1. I DECLARE that this Will is intended to dispose only of my property and estate situate in England –
2. I DESIRE to be buried in Carpaneto Piacenza Italy –
3. IF my wife EMILIA MARIA CANDIDA CURATI survives me for a period of one month then I GIVE DEVISE AND BEQUEATH all my property whatsoever and wheresoever situate unto her absolutely and APPOINT her to be the sole Executrix of this my Will –
4. IN the event of my said wife predeceasing me or failing to survive me for the period of one month then:—
(i) I APPOINT Barclays Bank Trust Company Limited (hereinafter called "the Company") to be the Executor and Trustee of this my Will …
(iii) The Company shall hold my residuary estate UPON TRUST:
(a) To pay thereout my just debts and funeral and testamentary expenses;
(b) After payment as aforesaid for my niece and nephew SYLVANA PERDONI and ROBERTO PERDONI both now of 165 Wardour Street London W1 in equal shares absolutely upon their reaching the age of twenty-one years; …"
At the same time Mrs Curati made a will mirroring those terms. Silvana Perdoni and Roberto Perdoni are the niece and nephew of Mrs Curati, being the children of her brother. They were the Claimants in the action and are the Respondents to this appeal.
On 29 September 1994 the Deceased made a short holographic will in Italy, written in Italian, in which he named his wife as his "erede universale". "Erede" means heir. There were before the court at trial two translations of the phrase 'erede universale', sole heir and universal heir. It was agreed before us that it is immaterial to the outcome of the appeal which translation is adopted.
The question for decision at trial was whether the 1994 will had the effect of revoking the 1980 will. If it did, then, upon the death of the Deceased, since Mrs Curati had died before him, an intestacy arose. The Deceased had a sister, Carmen Curati, who lives in Italy. She would be the sole beneficiary under the rules governing an intestacy, whether under English law or under Italian law. Carmen Curati was the Defendant in the action, and is the Appellant on this appeal.
An issue arose at trial whether assessment of the effect of the 1994 will should proceed by reference to Italian law or by reference to English law. It was common ground between the parties at trial that the law to be applied depends upon the country of domicile of the Deceased in 1994 when he made the will. The Claimants at trial maintained that the Deceased was domiciled in England at that time, so that the law of England applies. The Defendant said that he was domiciled in Italy at that time, so the law of Italy applies.
The Claimants maintained at trial that whether it is English law or Italian law which is applied, the 1994 will did not have the effect of revoking the 1980 will. Conversely, the Defendant maintained at trial that whether it is English law or Italian law which is applied, the 1994 will did have the effect of revoking the 1980 will. Both sides called expert witnesses as to the law of Italy, Dr Gatto for the Claimants and Professor Frigessi for the Defendant. They gave conflicting evidence.
Sales J decided that the Deceased had made England his domicile of choice by the time he made the 1994 will. Italian law was therefore irrelevant, but in case his conclusion on domicile should be challenged the judge helpfully set out his findings in the light of the contest on the evidence. He concluded that as a matter of Italian law the 1994 will would be regarded as effective to revoke the 1980 will. Because of the particular function and status accorded to an heir by Italian law, viewed in the light of that system of law the two wills are "functionally incompatible" and the later will revokes the earlier.
Sales J went on to decide, as he had to, whether as a matter of English law the later will likewise was to be regarded as revoking the earlier will. This is a question of construction, as pointed out by Sir J P Wilde, later Lord Penzance, in Lemage v Goodban [1865] LR 1 PD 57 at page 62. The short second will consists of no more than the nomination of Mrs Curati as erede universale. Indeed it contains only three operative words apart from names and dates, "nomino erede universale". It contains therefore no express words of revocation and no words indicative that it is intended to be the last will of the Deceased. The judge concluded that the 1994 will did not wholly revoke the 1980 will. He expressed his conclusion thus, at paragraph 41 of his judgment:—
"There was no material inconsistency between them, save that had Mrs Curati not died before her husband she would have taken the whole of his estate by operation of the 1994 will, it being unnecessary and redundant in that situation to rely upon the 1980 will leaving the English part of his estate to her. In the circumstances which have in fact arisen, there is no inconsistency or incompatibility between the two wills. The 1994 will is silent about what should happen if Mrs Curati should die before her husband, whereas the 1980 will makes express provision for that eventuality so far as concerns the English estate of the Deceased."
Accordingly, the judge concluded that that part of the 1980 will which left the English estate of the Deceased to the Claimants/Respondents is valid and should be carried into effect, the Deceased's wife having predeceased him.
The Appellant Carmen Curati appeals on two grounds. First, she seeks to abandon the common ground adopted at trial that it is the law of the Deceased's domicile at the date of execution of the will which governs the construction of that will. Somewhat bizarrely Mr Grierson for the Appellant complains that the judge "entirely failed" to consider the question whether the presumption that the law of the domicile should apply is here rebutted by the testator's intention to a different effect. Notwithstanding the adversarial nature of proceedings before an English court, it is, submitted Mr Grierson, for the court to apply the law rather than for the parties to agree it and this is a point which the judge could and should have taken of his own motion. The explanation for the judge not having been invited to consider that question is apparently that the Appellant was confident of establishing at trial that the Deceased had never abandoned his Italian domicile of origin, a conclusion which if established might have some relevance to the incidence of UK inheritance tax on the Deceased's estate in Italy. Indeed, Mr Grierson told us that those on the Appellant's side had been "flabbergasted" by the judge's decision to the contrary effect. Manifestly none of this offers a remotely acceptable explanation for not having invited the judge to consider the question of governing law on the contingent possibility that he might determine domicile as he did, but Mr Thomas for the Respondents did not suggest that the Appellant was precluded from maintaining before us the argument that the testator's manifest intention was that the law of Italy should govern the construction of his will made in Italy and in the Italian language. The second ground of appeal is that the judge erred in holding that as a matter of English law the 1994 will did not impliedly revoke the 1980 will. There is no appeal against the judge's conclusion that by 1994 the Deceased had made England his...
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Take Care When Making A Foreign Will
...recent case, Curati v Perdoni, 2012 EWCA Civ 1381, illustrates a particular problem that can arise when making a foreign The testator in this case, Mr Curati, made two wills, English and Italian. The English will was executed first, in 1980, and dealt with Mr Curati's English assets which w......
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