Enkhtsetseg Pescatore v Maria Valentino

JurisdictionEngland & Wales
CourtChancery Division
JudgePaul Matthews
Judgment Date15 July 2021
Neutral Citation[2021] EWHC 1953 (Ch)
Docket NumberCase No: PT-2021-000365

[2021] EWHC 1953 (Ch)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

PROPERTY, TRUSTS AND PROBATE LIST (ChD)

Royal Courts of Justice

Rolls Building, Fetter Lane,

London, EC4A 1NL

Before:

HHJ Paul Matthews

(sitting as a Judge of the High Court)

Case No: PT-2021-000365

Between:
Enkhtsetseg Pescatore
Claimant/Applicant
and
(1) Maria Valentino
(2) Alfonso Pescatore
(3) Giuseppe Sandullo
Defendants/Respondents

Marc Glover (instructed by Portner Law Ltd) for the Applicant

Daniel Lewis (instructed by Giambrone & Partners LLP) for the Respondents

Hearing dates: 7 July 2021

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Paul Matthews HHJ

Introduction

1

This is my judgment on an application made by notice dated 22 April 2021, on behalf of the Claimant in this action, for an interim anti-suit injunction directed to the First and Second Defendants, who are currently claimants in proceedings in Italy against the present applicant, concerning the inheritance of the late Vincenzo Pescatore. The matter was argued before me remotely via MS Teams on 7 July 2021, when Marc Glover of counsel appeared for the applicant and Daniel Lewis of counsel appeared for the respondents.

2

The applicant (the Claimant) was the deceased's second wife, and is now his widow. The respondents (the First and Second Defendants) are the children of the deceased by his first marriage. The application is made in the context of a claim begun by claim form under CPR Part 8, dated the same day. This seeks various relief against the Defendants concerning the administration of the deceased's estate, including a declaration as to the deceased's domicile at death, a permanent anti-suit injunction, and also an order removing the Third Defendant, the deceased's nephew, as executor of the deceased's will. (He is not however concerned in the present application.)

3

The matter first came before the court on 26 April 2021, before Miles J, seeking an interim injunction because there was to be a hearing in the Italian proceedings the next day, which it was apparently feared might make a substantive determination in the matter. The applicant had however not given proper notice to the respondents, and therefore effectively the application was on a without notice basis. Although there were emails before the court written by Italian lawyers on behalf of the respondents, the judge refused to grant an injunction on a without notice basis, and said that the application should be made on proper notice.

4

The matter came back before Zacaroli J on 6 May 2021. On that occasion the First and Second Defendants were represented by a solicitor advocate. The judge adjourned the application to be heard at a later date, on the basis that the time allowed on that day would not be sufficient for it to be properly dealt with. He also gave directions for evidence. (I should make clear that those directions did not include any for expert evidence.) The matter was then listed to be heard before me on 7 July 2021, when as I say I heard counsel on both sides.

Evidence

5

The evidence before me on this application is set out in (i) a witness statement by the Claimant dated 22 April 2021, (ii) a witness statement from the Defendants' Italian lawyer Avvocato Gabriele Giambrone dated 6 May 2021, (iii) a witness statement from the First Defendant dated 20 May 2021, and (iv) a further witness statement from the Claimant dated 4 June 2021. The court was not asked to order, and did not order, any cross-examination on these witness statements.

6

As to the impact of this written evidence, I remind myself that, in Coyne v DRC Distribution Ltd [2008] EWCA Civ 488, Rimer LJ (with whom Ward and Jacob LJJ agreed) said:

“58. … it is well-settled practice that if a court finds itself faced with conflicting statements on affidavit evidence, it is usually in no position to resolve them, and to make findings as to the disputed facts, without first having the benefit of the cross-examination of the witnesses. Nor will it ordinarily attempt to do so. The basic principle is that, until there has been such cross-examination, it is ordinarily not possible for the court to disbelieve the word of the witness in his affidavit and it will not do so. This is not an inflexible principle: it may in certain circumstances be open to the court to reject an untested piece of such evidence on the basis that it is manifestly incredible, either because it is inherently so or because it is shown to be so by other facts that are admitted or by reliable documents. … Mr Ashworth said that these principles apply equally to the case in which the evidence is given by witness statement rather than by affidavit, and I agree.”

Background

7

Before I go further, I will set out some family history, as well as the current structure of the immediate family. I take this from the written witness evidence. The deceased was born in 1940, one of nine children, in Mercogliano, a small town in the province of Avellino, in southern Italy, to the east of Naples. One of his sisters, Concettina Sandullo (who is now dead), had a son, the Third Defendant, who is therefore the deceased's nephew. Another sister, Maria Sartori, is still alive and has two children, Andrea and Giuliana. Andrea Sartori is married to Adele. Maria, Andrea and Adele all live in England, and all three have made witness statements in support of the Claimant's position in this claim. However, those witness statements are not relevant to this application, and I need not refer to them further in this judgment.

8

The deceased himself came to England to live in about 1960, and first married a lady called Gloria Ann. In fact, he lived and worked his whole life in England, and died and was buried here. Together he and his first wife had two children, the First and Second Defendants, born respectively in 1965 and 1964. The First Defendant has four children, Sabrina, Georgina, Natasha and Ricardo. The deceased's first wife died in 2001, and was buried in England. The deceased went into business in England, and founded a company here with a business associate. This company was ultimately sold in 1999. In addition to being born an Italian citizen, the deceased became a British citizen, and held a British passport and driving licence. He made tax returns, and paid taxes, in the United Kingdom. He made at least three wills in the English form.

9

Nevertheless, the deceased retained some connections with the land of his birth. He had a one-ninth undivided share in what I infer to have been the family home in Mercogliano. I assume that this arose out of inheritance from his parents. He owned some other pieces of land there. He visited Italy from time to time, and stayed in the family home. He also voted in Italian elections, both at local and national level.

10

In 2008 the deceased married the Claimant, who had been born in 1972 in Mongolia. She has a daughter from a previous marriage, Michelle. The Claimant's evidence is that they met in 2004, and thereafter entered into a relationship. She says that the deceased proposed marriage to her in 2006, and in 2008 she returned to Mongolia with the deceased with the intention of marrying him there, as indeed happened. This account of how they met and married is disputed by the Defendants, but I do not think anything turns on it for present purposes.

11

During the marriage of the deceased and the Claimant, the deceased's health became a matter of concern. The Claimant says that he began to fall ill in 2009. The Defendants however date his illness from 2015. It is clear on the evidence that the Defendants did not have a very close relationship with the deceased during the time that he was married to the Claimant at least, and I think therefore the Claimant is more likely to be right about this. But, again, the date does not matter for present purposes.

12

The deceased had a number of significant medical problems. In particular, he had a tumour in the right eye, necessitating its removal, high blood pressure, chronic obstructive pulmonary disease and chronic heart failure. He was also seriously overweight. The deceased was admitted to hospital on a number of occasions, and finally died in St Mary's Hospital, Paddington, on 20 March 2018, at the age of 78 years. The death certificate gave the cause of death as (I(a)) Type 2 respiratory failure, as a result of (I(b)) congestive cardiac failure, with (II) acute on chronic renal failure, obesity and chronic obstructive pulmonary disease being also present and contributing.

13

During the marriage, the Claimant and the deceased lived together at a residential property known as 18 Bolton Gardens London NW10 5RD. The land registry entries in evidence show that the property was first registered in 1958. At some point the deceased acquired it, and remained the sole owner until 2016, when he transferred it into the joint names of the Claimant and himself. That created a joint tenancy of the fee simple estate in the property, and so, on the death of the deceased, the whole property vested in the Claimant by right of survivorship, without passing through the deceased's estate. There is no evidence to show that the beneficial joint tenancy which must be assumed to have existed was ever severed by the deceased.

14

In April 2019 the register was updated to show the Claimant as the sole owner of the property. This transmission accordingly took place outside any will or the application of intestacy rules, and as a direct result of the inter vivos transaction entered into...

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1 firm's commentaries
  • Private Client Legal Updates (28 July 2021)
    • United Kingdom
    • Mondaq UK
    • 30 July 2021
    ...up moving budget to 2022 on back of Covid crisis | Budget | The Guardian Cross-border estate dispute Pescatore v Valentino & Ors [2021] EWHC 1953 (Ch) is a complex cross-border probate dispute involving "forum-shopping". The deceased's widow applied for (and was granted) proba......

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