Curati v Perdoni & anr [2012] EWCA Civ 1381

Analysis

Pierluigi Curati (Mr Curati) had a domicile of origin in Italy. He moved with his wife (Mrs Curati), a British national, to England in 1955. Mr and Mrs Curati ran a family restaurant (inherited from Mrs Curati’s parents) until 1970, when they sold the restaurant and invested the proceeds in real property which added to the property portfolio which they had already started to build up in England. They also held real property in Italy which they rented to third parties. On 18 December 1980, Mr and Mrs Curati made formal mirror wills in England, drawn in English which were limited to their English property. These wills passed their assets to each other and provided that on the second death the estate would pass to the respondents, Mrs Curati’s niece and nephew, Sylvana and Roberto Perdoni (the respondents). On 29 September 1994, while in Italy, Mr and Mrs Curati made short mirror holograph wills which were drawn in Italian. These wills contained no express revocation clause and simply named each other as erede universale (meaning sole or universal beneficiary). There was no gift in substitution. Mrs Curati predeceased her husband and died on 10 July 2007. On Mr Curati’s death on 23 July 2008, it wasn’t clear whether an intestacy arose which would make the appellant, Mr Curati’s sister, Carmen Curati (the appellant) the only beneficiary of his estate under Italian law or under English law. The question for the trial judge was whether the 1994 will revoked the 1980 will. The parties agreed that the law to be applied depended on the country of domicile of Mr Curati at the date of execution of the 1994 will. The respondents maintained Mr Curati was domiciled in England and that whichever law applied the 1994 will did not revoke the 1980 will whilst the appellant maintained Mr Curati was domiciled in Italy and whichever law applied, the 1994 will did revoke the 1980 will. Sales J held that by 1994 Mr Curati had made England his domicile of choice and as such Italian law was irrelevant and that the 1994 will did not wholly revoke the 1980. His reasoning was based on there being no material inconsistency between the two instruments. The gift of the estate to the respondents was held effective. The appellant appealed on two grounds. Firstly, that the presumption that the law of the domicile applied was rebutted by Mr Curati’s intention to a different effect and secondly, that Sales J had erred in holding that the 1994 will did not revoke the 1980 will.

Held (dismissing the appeal):

1. (1) The construction of a will is governed by the law intended by the testator. In the case of a will of moveables this is presumed to be the law of the testator’s domicile at the date of execution of the will. This is a presumption that can be rebutted by the testator demonstrating a sufficient intention for the law of another country to apply. For immoveable assets, the situation is similar and evidence of rebuttable could be the use of technical language of the country where the immoveables are situated.
2. (2) The appellant relied on four points to rebut the presumption that the domiciliary law should apply, namely that the will was in Italian, it used Italian terminology, it was made in Italy and it was made by an Italian citizen. These grounds were not accepted as sufficient either individually or in aggregate to rebut the presumption that the English domiciled Mr Curati intended the law of his domicile to apply. Mr Curati was never comfortable with the English language, ‘erede universal’ was not a term of art, the reasons around Mr Curati’s visit to Italy were not clear and the fact he was an Italian citizen was of little weight given the presumption that the domiciliary law should apply. On the facts it was clear that Mr Curati regarded England as his home and considered himself British and there was overwhelming evidence to that effect. The attempt to rebut the presumption that it is the domiciliary law which governs the construction of the 1994 will was rejected.
3. (3) Where the instrument contains no express revocation clause, there is a presumption against implied revocation. Implied revocation of a will is assessed on the intention of the testator and the testator’s intention is collected from the instrument. Making a subsequent testamentary document is not in itself sufficient to rebut the presumption unless the later disposition expressly or in effect revokes the former or the two or inconsistent with each other.
4. (4) Where there is nothing in the instrument from which to derive an intention to revoke, and where there is no inconsistency between instruments, then revocation should not be implied. Mr Curati was consistent in the extent of his gift to his wife but silent in his 1994 will as to what should happen in the event of his wife predeceasing him. As such, there was no basis for inferring that the testator intended to impliedly revoke his 1980 will. There was no inconsistency between the two wills and therefore they should be given their full effect. The second ground of appeal was thus also dismissed.

JUDGMENT LORD JUSTICE TOMLINSON: [1] 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 …

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