Sylvana Marchant Perdoni and Another v Carmen Curati
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE SALES,Mr Justice Sales |
| Judgment Date | 20 December 2011 |
| Neutral Citation | [2011] EWHC 3442 (Ch) |
| Docket Number | Case No: HC10C01410 |
| Court | Chancery Division |
| Date | 20 December 2011 |
[2011] EWHC 3442 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
GENERAL
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Sales
Case No: HC10C01410
Mr Nigel Thomas (instructed by Debenhams Ottaway) for the Claimants
Mr Robert Grierson (instructed by Cree Godfrey & Wood) for the Defendant
Hearing dates: 8–9/12/11
Introduction
This is the trial of a claim in which the Claimants ("Ms Perdoni" and "Mr Perdoni") seek to establish that a will made on 18 December 1980 by their uncle, Perluigi Curati ("the Deceased"), in relation to his property in England ("the 1980 will") is effective. Under the 1980 will, the Deceased left his estate in England to his wife ("Mrs Curati"), but if she died before him the estate was to go to Ms Perdoni and Mr Perdoni, who are the children of Mrs Curati's brother. Mrs Curati did die before the Deceased, so if the 1980 will is effective Ms Perdoni and Mr Perdoni stand to inherit the Deceased's estate in England under it. That estate has been valued at about £2.1m for probate purposes.
The claim depends upon the effect of a later holographic will made by the Deceased in Italy on 20 September 1994 ("the 1994 will"), written in Italian, in which he named Mrs Curati as his "Erede Universale", or sole or universal heir. The question arises 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 Defendant is the sister of the Deceased, who lives in Italy. She would be the sole beneficiary under the rules governing an intestacy, whether under English law or under Italian law. Her son, Rodolfo Bocelli ("Mr Bocelli"), gave evidence at the hearing.
An issue arises 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 that the law to be applied depended on the country of domicile of the Deceased in 1994 when he made the 1994 will. The Claimants maintain that the Deceased was domiciled in England at that time, so that the law of England applies. The Defendant says that he was domiciled in Italy at that time, so the law of Italy applies.
The Claimants maintain 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 maintains 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, Dr Gatto for the Claimants and Professor Frigessi for the Defendant. They gave conflicting evidence about Italian law.
Factual background
The main evidence about the factual background, in particular so far as concerns the domicile of the Deceased, was given by Ms Perdoni and Mr Bocelli. To a signficant extent there was agreement between them about the main features of the factual history, though they differed about the significance of aspects of this and in their assessment of where the Deceased thought of as his home or main country of residence.
The Deceased was born in Piacenza, Italy in 1927 of Italian parents. He had a sister, the Defendant, and a brother, Paolo, who died in 1944 fighting for the partisans. When the Deceased was six, the family moved to the small town of Carpaneto near Piacenza, which became the family home. His parents ran a restaurant and hotel in the town. The Deceased worked there for many years until leaving Italy in April 1955 to go to work in London "to improve his economic condition" (as Mr Bocelli put it).
Before that, the Deceased had met his future wife in Carpaneto. She was born and brought up in England, but her parents were Italians from Carpaneto who had emigrated to London after the First World War and they used to return to visit Carponeto with their daughter. They ran an Italian restaurant in Camden, London.
When the Deceased came to London, he worked as a cook in that restaurant. In July 1955 he married Mrs Curati. They both worked in the Camden restaurant. A short while after their marriage, Mrs Curati's parents transferred the Camden restaurant to the Deceased and Mrs Curati and started up another restaurant in Piccadilly with their son, the father of the Claimants. In about the late 1950s they transferred that restaurant to him and retired to live in Carpaneto.
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.
When the Deceased's father died in 1980, he inherited an apartment in Carpaneto in which his parents had lived. This was rented out to third parties rather than retained for the use of the Deceased and Mrs Curati. Over time, between them they built up a portfolio of investment properties in Italy in parallel with their property portfolio in England. They also retained certain Italian properties for their own use, including in Carpaneto (where the Deceased was very proud of the fact that a street had been named after his brother Paolo in acknowledgement of his death fighting for the partisans). However, I am satisfied on the evidence that their use of these properties was essentially for holiday purposes or business visits by the Deceased, and that their marital home and main centre of business activities remained England.
All his life, the Deceased spoke to Mrs Curati in the dialect of Carpaneto. His English was adequate to carry on his business in England, but he did not feel at home in the language. When he had to attend meetings with English officials he would be accompanied by Mrs Curati, to act as translator. It seems that they did not build up an active social life with English people. The Deceased retained his Italian citizenship. On the other hand, Mrs Curati was not at home speaking ordinary Italian. Her grammar was poor. She had been born and brought up in England. She was a British citizen.
The Deceased and Mrs Curati did not have any children. They were inseparable. There were tensions between them at times, but they were devoted to each other. The Deceased was more dominant in the marriage, but clearly was motivated when taking decisions to take account of and give full weight to the wishes and interests of Mrs Curati.
The unchallenged evidence of Ms Perdoni was that the Deceased always referred to England as his home. He took great pride in the marital home in England and worked hard to maintain it. He and Mrs Curati would also speak about wishing to be buried in the family plot in Carponeto. According to Ms Perdoni, and as I accept, that is not unusual as many Italians want to be buried with family in this way.
On the other hand, the unchallenged evidence of Mr Bocelli was that the Deceased would assert that he was in London "to work and make money". In the Deceased's last years, long after 1994, in periods of lucidity he would express the desire to go back to Italy, particularly after Mrs Curati died. However, in cross-examination Mr Bocelli said that he did not know the Deceased's thinking in 1994, because he (Mr Bocelli) was travelling in Europe working and had less contact with him at that stage.
In 1980, the Deceased made the 1980 will and at the same time Mrs Curati made a will mirroring its terms. The wills were drawn up in English as formal documents. The 1980 will included the following terms:
"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; …"
In 1992, Mrs Curati contracted intestinal cancer. At least from that time it is clear that she did not wish to leave England to live anywhere else, since she trusted and was dependent on the care she received in the NHS. The cancer was operated on and treated, but was never completely cured.
In 1994, the Deceased made the 1994 will and at the same time Mrs Curati made a will mirroring its terms. The 1994 will was a short holographic will in which the Deceased wrote that he appointed Mrs Curati his "Erede Universale" (his sole or universal heir). It is clear from the evidence that the meaning of this Italian phrase was that Mrs Curati should inherit all his property, wherever it was located.
In 2000 the Deceased suffered a stroke. From that time his health declined in other ways as well. He found it harder...
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