Analysis
Perluigi Curati (Mr Curati), who had a domicile of origin in Italy, came to England in April 1955 from Carpaneto to work for his future parents-in-law, who ran a restaurant in Camden. They had previously emigrated from the same town but their daughter was born in England. Mr Curati married Mrs Curati (née Perdoni) in July 1955 and shortly afterwards took over the running of the restaurant, which they eventually sold in the late 1970s. They invested the proceeds in the purchase of real property, to add to a portfolio of investment properties that they had started to build up in England. In 1980 Mr Curati inherited an apartment in Carpaneto, which he rented out, and over the years built up a parallel portfolio of investment properties in Italy. Mr and Mrs Curati, who were childless, made mirror-image formal wills, drawn in English and limited to their property in England on 18 December 1980, leaving their estate to each other but with a provision that, if either predeceased, it was to pass instead to the claimants, who were the children of Mrs Curati’s brother. Subsequently, however, they made mirror-image holographic wills in Italy and drawn in Italian, on 20 September 1994, simply naming each other as sole or universal heir. Neither contained an express revocation clause nor a provision to substitute an heir in the event of predecease. Mrs Curati died before her husband on 10 July 2007. When Mr Curati died, on 23 July 2008, leaving an estate in England valued at £2.1m, the question arose whether his 1994 will had the effect of revoking his 1980 will. If it did, then there was an intestacy, under which rules the sole beneficiary would be the defendant, who was Mr Curati’s sister. An issue arose as to whether the applicable law for the assessment of its effect was English or Italian, and that depended on whether Mr Curati was domiciled in England or Italy when he made his 1994 will. If it was the latter, there was conflicting evidence as to its effect in Italian law.
Held (allowing the claim)
A domicile of origin adheres until displaced by satisfactory evidence of the acquisition of a domicile of choice, ie when it can be affirmatively shown that the propositus is resident within a territory subject to a distinctive legal system with the intention, formed independently of external pressures, of residing there indefinitely. Although Mr Curati had property available for his use in Italy, this was only for holiday or business purposes, whereas the marital home and centre of his business activities was in England. He had been resident there for nearly 40 years and the evidence demonstrated that by 20 September 1994 he had formed the requisite intention to reside indefinitely in England. He had acquired a domicile of choice in England and, therefore, the assessment of the effect of his 1994 will should be made by reference to English law. Where there was no express revocation clause, the question was one of implication whether the intention of the testator, ascertained from successive testamentary instruments, was that the dispositions of an earlier will should remain in whole or in part operative. There was a presumption against implied revocation, and the making of a subsequent testamentary disposition does not work as a revocation of a prior one unless the latter in effect revokes the former or the two are incapable of standing together. Applying this principle to the present case, there was no material inconsistency between the two instruments save that, had Mrs Curati not died before her husband, she would have taken the whole estate by operation of his 1994 will and it would have been unnecessary for her to take the English part by relying on his 1980 will. Mr Curati’s 1994 will was silent as to what should happen if his wife predeceased, whereas express provision for that eventuality was made by his 1980 will in relation to that part of his estate in England. His 1994 will did not therefore wholly revoke his 1980 will, the material part of which remained valid leaving his English estate to the claimants.
Obiter: if otherwise Mr Curati’s domicile of origin had persisted and the assessment of the effect of his 1994 will fell to be determined by reference to Italian law, the conflict of evidence would be resolved by following the reasoning of a judgment dated 11 May 2009 of the Court of Cassation in Case No 10800. Article 682 of the Civil Code laid down a principle of preservation according to which the effect of an earlier instrument will be preserved so long as there is no inconsistency or incompatibility between it and a later instrument. In that case, on materially identical facts, it was held that the later will revoked the earlier will because they were incompatible not merely subjectively but also objectively or functionally. The latter was equally applicable to the present case and, if the effect of the 1994 will fell to be determined by reference to Italian law, it would have operated to revoke the 1980 will.
JUDGMENT MR JUSTICE SALES: Introduction [1] 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 …Continue reading "Perdoni & anr v Curati [2011] EWHC 3442 (Ch)"