Perdoni & Anor v Curati [2011] EWHC 3442 (Ch)

Case No HC10C01410[2011] EWHC 3442 (Ch)IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONGENERALVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/12/2011
Before
THE HONOURABLE MR JUSTICE SALES
Between
SYLVANA MARCHANT PERDONIClaimantsROBERTO PERDONIClaimantCARMEN CURATIDefendant
Mr Nigel Thomas (instructed by Debenhams Ottaway) for ClaimantsMr Robert Grierson (instructed by Cree Godfrey & Wood) for DefendantHearing Hearing dates: 8-9/12/11
JudgmentMr 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 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.[2]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.[3]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.[4]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

[5]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.[6]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).[7]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.[8]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.[9]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.[10]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.[11]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.[12]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.[13]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.[14]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.[15]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; …” (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; …”
[16]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.[17]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.[18]In 2000 the Deceased suffered a stroke. From that time his health declined in other ways as well. He found it harder to cope with his business affairs. He managed to persuade Mr Bocelli to help him from 2002 to manage the portfolio of Italian properties, and in 2004 Mr Bocelli gave up his job to do that full time. It was from about this point that Mr Bocelli spent a good deal of time with the Deceased and Mrs Curati. However, Mr Bocelli was not willing to do the same in relation to the portfolio of English properties and the Deceased had not found a suitable manager for them. So in 2002/2003 the Deceased and Mrs Curati sold all their English properties, retaining only the marital home. They invested the proceeds in a variety of financial products. The Deceased also took steps from about 2002/2003 to improve and develop a house in Carponeto where he and Mrs Curati might be able to live in retirement, if Mrs Curati’s cancer was completely cured, or where he could go to live if she died.[19]In October 2004 the Deceased suffered a second stroke. His mental capacities were now severely impaired. He suffered a personality change and became aggressive and paranoid. Mrs Curati could no longer cope with him at home and in 2006 he was moved into a care home.[20]Mrs Curati died on 10 July 2007. When she was in hospital shortly before her death she arranged for a solicitor, Miss Bridel (now Mrs McLagan), to visit her to discuss her and the Deceased’s wills. Mrs Curati wanted to revoke her existing will in relation to her English estate and make a new one. She told Mrs McLagan that she and the Deceased had Italian property and had Italian wills to cover that property. She told Mrs McLagan that the new will should therefore not revoke her Italian will. On 22 June 2007, Mrs Curati made a new will in relation to her English estate, the terms of which made it clear that it did not apply in relation to her property in Italy and would not revoke any will relating to her Italian property. She left £500,000 to the Deceased and divided up the remainder of her English estate between various people, including the Claimants. The Deceased was suffering from dementia and did not have testamentary capacity at this stage, so he made no new will.[21]In my view, the evidence regarding the change by Mrs Curati of her will does not assist in resolving the issues in dispute in these proceedings. Whilst it is evidence that shows that she thought that the will she had made in 1980 in relation to her English property survived the making of her Italian will in 1994, and it might perhaps be inferred that the Deceased had the same idea about the 1980 will and the 1994 will, their subjective understandings in that regard cannot control the proper interpretation of the meaning and effect of the 1980 will and the 1994 will. Mr Thomas for the Claimants accepted this. A will is a document which controls the disposition of property after someone dies. It is to be interpreted objectively, so everyone can know with confidence where they stand after the testator has gone. Evidence of the subjective understanding of the testator will not usually be relevant to that exercise. Since, judged on an objective basis, there is no ambiguity in the meaning of the 1980 will and the 1994 will (cf section 21 of the Administration of Justice Act 1982), the evidence of Mrs McLagan cannot affect the proper interpretation of their meaning.[22]After Mrs Curati died, a solicitor was appointed by the Court of Protection as the deputy for the Deceased, on the basis that he did not have mental capacity to manage his affairs or take decisions regarding his own welfare. A rift appears to have developed, in that Mr Bocelli and family members in Italy wanted the Deceased to be taken to Italy while the deputy considered he should remain in the care home in England. Mr Bocelli’s unchallenged evidence was that in moments of mental lucidity the Deceased asked to be taken to Italy to end his life there. In the end, the Court of Protection confirmed the appointment of the deputy and her decision that the Deceased should stay in the care home.[23]On 23 July 2008 the Deceased died.

Domicile

[24]The relevant issue under this head is the country of domicile of the Deceased at the date he made the 1994 will. The Deceased’s domicile of origin was Italy. The issue, therefore, is whether he had made England his domicile of choice by the time he made the 1994 will.[25]The leading authority to which both parties took me regarding the approach to be applied when examining whether a person has acquired a new domicile of choice is In the Estate of Fuld, decd. (No. 3) [1968] P 675. At 683E-F, after reviewing various authorities, Scarman J observed that “the intention with which the law is concerned is an intention as to residence, and nothing else.” At 684F-686D Scarman J stated the law thus:
“(1) The domicile of origin adheres - unless displaced by satisfactory evidence of the acquisition and continuance of a domicile of choice; (2) a domicile of choice is acquired only if it 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. If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g., the end of his job, the intention required by law is lacking; but, if he has in mind only a vague possibility, such as making a fortune (a modern example might be winning a football pool), or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by law. But no clear line can be drawn: the ultimate decision in each case is one of fact - of the weight to be attached to the various factors and future contingencies in the contemplation of the propositus, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities. (3) It follows that, though a man has left the territory of his domicile of origin with the intention of never returning, though he be resident in a new territory, yet if his mind be not made up or evidence be lacking or unsatisfactory as to what is his state of mind, his domicile of origin adheres. And, if he has acquired but abandoned a domicile of choice either because he no longer resides in the territory or because he no longer intends to reside there indefinitely, the domicile of origin revives until such time as by a combination of residence and intention he acquires a new domicile of choice. There remains the question of standard of proof. It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the party asserting the change. But it is not so clear what is the standard of proof: is it to be proved beyond reasonable doubt or upon a balance of probabilities, or does the standard vary according to whether one seeks to establish abandonment of a domicile of origin or merely a switch from one domicile of choice to another? Or is there some other standard? … What has to be proved is no mere inclination arising from a passing fancy or thrust upon a man by an external but temporary pressure, but an intention freely formed to reside in a certain territory indefinitely. All the elements of the intention must be shown to exist if the change is to be established: if any one element is not proved, the case for a change fails. The court must be satisfied as to the proof of the whole; but I see no reason to infer from these salutary warnings the necessity for formulating in a probate case a standard of proof in language appropriate to criminal proceedings. The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B. in Barry v. Butlin [(1838) 2 Moo.P.C.C. 480, PC]) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear - first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words.”
There remains the question of standard of proof. It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the party asserting the change. But it is not so clear what is the standard of proof: is it to be proved beyond reasonable doubt or upon a balance of probabilities, or does the standard vary according to whether one seeks to establish abandonment of a domicile of origin or merely a switch from one domicile of choice to another? Or is there some other standard? The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B. in Barry v. Butlin [(1838) 2 Moo.P.C.C. 480, PC]) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear - first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words.”[26]In making an assessment of the intention as to domicile of a person at a particular date, the evidence of things said and done by him up to that date will obviously be important. In my view, evidence of things said and done by him after that date may also be relevant, but only in so far as an inference can properly be drawn from them as to what his intention in fact was at the date in question.[27]In the present case, in my judgment, the Deceased had by and at 20 September 1994 (when the 1994 will was made by him) formed the requisite intention to reside indefinitely in England, and had therefore acquired England as his domicile of choice. In making that assessment, I would particularly emphasise the following matters: i) On the evidence the Deceased came to England in 1955 to reside here for an indefinite period to work to improve his economic situation. He did not at that stage have an intention to return to Italy “upon a clearly foreseen and reasonably anticipated contingency” (in the language used in Fuld). He had that in mind only as “a vague possibility”, if he made his fortune or as a possibility to return there at the end of his life; ii) His intention to make England his home and reside here indefinitely was quickly and considerably reinforced by marrying Mrs Curati, who was a British citizen (albeit of Italian heritage) born and brought up in England, and by receiving the business of the Camden restaurant as a gift from Mrs Curati’s parents. The running of the business of that restaurant was the centre of the business activities of the Deceased for many years; iii) He and Mrs Curati established what was originally their sole marital home in England, and it remained their primary marital home even after they acquired properties in Italy, up until Mrs Curati’s death in 2007; iv) When the Deceased first acquired property in Carponeto by inheritance, he did not retain it for his own use but let it out to third parties. When, later on, he and Mrs Curati acquired further properties in Italy, those which they retained for their use were in the nature of holiday homes, and did not replace their main home in England; v) After the Camden restaurant was sold, the main focus of the Deceased’s business activities remained in England. The proceeds from the sale of the restaurant were principally invested in a property portfolio in England; vi) The intention of the Deceased to reside indefinitely in England was reinforced still further in 1992 when Mrs Curati was diagnosed with cancer and it became clear that she wished to be cared for by the NHS in England. The Deceased was inseparable from her, and from that time on there was no prospect that he would change the established pattern of his life and decide to return to live in Italy until she was fully recovered or died. As Mr Bocelli fairly put it in his oral evidence, in the period after 2002/2003 (when he spent more time with the Deceased and from discussion with him became familiar with his thinking) the Deceased was waiting for something to be resolved in order to make a decision about where to live; vii) The best direct evidence of the Deceased’s state of mind up to about 2002 was the unchallenged evidence of Ms Perdoni that he said he regarded England as his home and considered himself to be British; viii) From 2002, the clearest and most precise evidence about the Deceased’s state of mind was from Mr Bocelli. I accept his evidence that from that time the Deceased appeared to indicate a wish, for his own part and leaving to one side the position of his wife, to return to live in Italy. However, even then the Deceased had not made up his mind to do so in any definite way: see sub-paragraph (vi) above. In any event, against the background of the other evidence and matters to which I have referred, I do not find it possible to infer from the statements made by the Deceased in this last period of his life, when he was ill and starting to make preparations for the end of his life, that he had not had the requisite intention to reside indefinitely in England at the critical time in 1994.

Italian law

[28]The effect of my conclusion in relation to the domicile of the Deceased in 1994 is that, by agreement between the parties, the assessment of the effect of the 1994 will should be made by reference to English law rather than Italian law. However, since I heard the evidence of Dr Gatto and Professor Frigessi and in case I have erred in my conclusion on the domicile question, I should briefly set out my findings about the relevant Italian law.[29]The position of Dr Gatto was that one could give sensible meaning to the nomination of Mrs Curati in the 1994 will as the “erede universale” of the Deceased while at the same time preserving the effect of the 1980 will. By naming Mrs Curati as his sole or universal heir in the 1994 will in relation to the whole of his estate (wherever located), the Deceased could be taken to have expanded the grant to Mrs Curati of his English estate alone under the 1980 will. The two wills were not, therefore, inconsistent with each other. Dr Gatto also referred to a doctrine in Italian law which he called “the preservation principle” based on Article 682 of the Civil Code, according to which the effect of an earlier instrument is taken to be preserved so long as there is no inconsistency or incompatibility between it and a later instrument. That principle, he said, led to the conclusion that in Italian law the effectiveness of the 1980 will would be preserved after the 1994 will was made. If Mrs Curati survived the Deceased, she would take his whole estate under the 1994 will, just as she would have taken the part of it constituting his English estate under the 1980 will – so no inconsistency there. On the other hand, if she died before the Deceased, there was simply no provision in the 1994 will which would have any application, so again there was no provision in that will which was inconsistent with the back-up provision in the 1980 will for the English estate to go to Ms Perdoni and Mr Perdoni. The back-up provision in the 1980 will should therefore be carried into effect, as required by the preservation principle.[30]Dr Gatto referred to a decision of the Italian Court of Cassation (the highest Italian court in this area of the law) to which attention had been called by Professor Frigessi: judgment of 11 May 2009 in Case No. 10800 (“the 2009 judgment”). According to Dr Gatto, the case supported his analysis of the law, since it affirmed the preservation principle. It was a case in which the Italiam courts had held that a later will had had the effect of revoking an earlier will, but Dr Gatto said it could be distinguished on its particular facts.[31]Professor Frigessi disagreed with this. He accepted that there is a preservation principle in Italian law, based on Article 682. However, according to him the 2009 judgment could not be distinguished on its facts. It was, on proper analysis, clear authority on materially identical facts which directly supported the conclusion that, under Italian law, the 1994 will would be found to be inconsistent with the 1980 will and so would be taken to have revoked the 1980 will. He emphasised that there were two reasons given for the decision in the 2009 judgment that the later will in that case had revoked the earlier will, namely(i) objective or functional incompatibility between the two wills and(ii) subjective incompatibility between them. He said that the reasoning of Dr Gatto only addressed the second of these, in relation to which the cases could be distinguished on their facts. However, in relation to the first reason the cases could not be distinguished. It was sufficient for a later will to revoke an earlier will that there be either functional incompatibility or subjective incompatibility, so - since in his view there was functional incompatibility between the 1994 will and the 1980 will - the 1980 will would be treated in Italian law as having been revoked.[32]According to Professor Frigessi, functional incompatibility existed between the 1980 will and the 1994 will precisely because the Deceased had named Mrs Curati as his “erede universale”. In Italian law an heir has a particular function and status, so by naming Mrs Curati as his “herede universale” in the 1994 will the Deceased should be taken to have excluded any possibility for her to have that function and status under the 1980 will. Therefore, the provision under that will for Ms Perdoni and Mr Perdoni to take the English estate as her substitutes as heirs could have no operation.[33]To evaluate the opposing evidence on Italian law it is necessary to consider the 2009 judgment in a little detail. In that case the deceased died on 12 May 1986 leaving(i) a holographic will dated 11 January 1986 which named his wife as his “erede universale” and in the event that she died before or at the same time as him naming his niece as his heir, with legacies to two other named persons, and(ii) another holographic will dated 12 April 1986 which simply named his wife as his “erede universale”. The deceased’s wife died before him, so the question arose whether the first will took effect or whether it had been revoked by the second will, so that the deceased’s estate fell to be distributed according to the law of intestate succession. The regional court at first instance held that the second will had revoked the first will. The Court of Appeal affirmed that conclusion. In the 2009 judgment the Court of Cassation dismissed the appeal by those seeking to uphold and claim under the first will.[34]In the material part of the 2009 judgment the Court of Cassation said this (the translation of the judgment was by Professor Frigessi and agreed by Dr Gatto; for convenience of reference I have divided the quotation into three parts, A, B and C):
“[A] This Court has already affirmed that, if a testator issues a number of successive wills and does not expressly revoke any of the earlier wills in the most recent version, only the testamentary dispositions that, further to a specific investigation, are found to be incompatible with the most recent will must be considered null and void in accordance with article 682 of the Civil Code, which lays down the principle of preservation of last wills of an earlier date (see also Cassation, no. 423 of 1983; Cass., no. 6745 of 1983; Cass., no. 12113 of 1991; Cass., no. 12285 of 2002). Article 682 of the Civil Code lays down that when a subsequent will does not expressly revoke any preceding will, only the dispositions of the preceding will that are in contrast with the subsequent will are revoked. This is evidently inspired by a general principle of preservation of prior dispositions and coexistence of them with those of the subsequent will, in order to limit as much as possible the lapse of the previous dispositions and to achieve the result of the implicit revocation of the entire contents of a preceding will only when there is found to be the impossibility of the survival of the remaining dispositions pursuant to changes arising from a comparison with the contents of any subsequent will (Cassation, no. 12113 of 1991; Cass., no. 12649 of 2001). The Court of Appeals adhered to these principles. After comparing the testamentary dispositions relevant to the present case, the Court reached the conclusion of the incompatibility of the testamentary disposition that instituted the wife of the testator as heir and the disposition, contained in the immediately preceding testamentary disposition, that provided for the substitution of the named heir with another person, in the event that the wife of the testator should die at the same time as the testator, which was therefore tacitly revoked. [B] The Court of Appeals sufficiently explained the grounds leading it to ultimately reach this conclusion. Specifically, the regional Court assessed whether the two successive testamentary dispositions were objectively compatible in terms of the different function of each. The Court has preliminarily found that the chance that a provision for the substitution of the heir, normally set forth in the same will, performs its function is contingent on the fact that the instituted heir would not be able to receive the estate. Therefore, “in view of the fact that the substitution aims to prevent issues of representation, accretion and intestate succession in the event that the first institution of heir does not work, it is easy to understand the fundamental difference between the two wills in question (…): with the subsequent will, as there were no substitutions of heir provided, and as the named heir predeceased the testator, the estate must be devolved as required under the law of intestate succession. This result, arising from the decision of the testator to not designate any other person in the event that his wife were unable or unwilling to accept the estate, is clearly irreconcilable – or legally incompatible – with the devolution of the estate to another heir, based on a substitution not set forth in the same will, but previous to it, in relation to a different institution of heir”
. The regional Court then added the additional consideration that “the devolution of the estate to the person named as substitute is not complete but conditioned, and implies that the substitute to the succession has no rights to the estate as long as the call of the instituted heir remains effective. It follows that the substitute nature of this conditional institution of heir had exhausted its function in relation to the first will, expressed in that will: the testator’s failure to set forth such a substitution in a subsequent will implies, in the event that the only instituted heir should predecease the testator, the application of the law of intestate succession”. [C] From this perspective, the Court of Appeals deemed that the already significant functional incompatibility of the subsequent testamentary dispositions was confirmed even in terms of the intentional or subjective incompatibility, which, in conformity with the established case law issued by this court, the Court of Appeals affirmed also in light of a literal interpretation of article 682 of the Civil Code. The subjective incompatibility was assumed by the Court of Appeals from the actual contents of the dispositions contained in the two subsequent wills, based on the finding that “since in both wills, the wife was named the universal heir, the only purpose that could be attributed to the subsequent will (…) is to revoke the substitution set forth in the will dated 11 January 1986 and with it, the legacies devolved only in the case that the substitution would prove necessary”. From this perspective, the regional court then noted how, in another document issued subsequent to both wills, [the deceased] and his wife had stipulated that two interest-bearing certificates be given to an individual who had been named as a legatee in the will dated January 11 1986, which also contained the disposition of the substitution; the regional Court assumed from this the clear and evident intention of the testator to consider unequivocally superseded and therefore revoked the bequeath previously devolved to that individual who had been named as legatee exclusively on charge of the substitute heir and with it, the designation of said heir as such.”[35]In the first part of this passage, marked A, the Court of Cassation clearly affirmed the preservation principle set out by Dr Gatto. It is fair to say that in the second section, marked B, the Court affirms reasoning of the lower courts which is not immediately familiar to an English lawyer and easy to understand. However, in my view it does appear from the sections marked B and C that the Court of Cassation rejected the appeal by those claiming under the first will for two distinct reasons, as Professor Frigessi said. The points to distinguish the case on the facts from the present case on which Dr Gatto relied were those set out by the Court when explaining, in the section marked C, that there was subjective incompatibility between the two wills (why else would the deceased have made the second will again naming his wife as “erede universale” but with no substitute heir or legatees, other than to ensure that his niece and the named legatees in the earlier will were no longer to have any claim in relation to his estate?). However, the Court also rejected the appeal on the distinct ground, in the section marked B, that there was functional incompatibility between the two wills.[36]Professor Frigessi in his evidence gave the best explanation for this aspect of the decision. Dr Gatto did not really address or explain the section marked B at all. Having regard to the reasoning in the 2009 judgment, therefore, I prefer the evidence of Professor Frigessi on Italian law. According to his explanation, the reasoning of the Court of Cassation in the section marked B is equally applicable to the circumstances of the present case. It follows that if the effect of the 1994 will fell to be addressed as a matter of Italian law, I would have held that it operated to revoke the 1980 will.

English law

[37]There was no express revocation clause in the 1994 will. The question whether the 1994 will revoked the 1980 will therefore depends on whether it did so by implication: “the question is whether the intention of the testator, to be collected from the instrument, was that the dispositions of the earlier will should remain in whole or in part operative” (Dempsey v Lawson (1877) 2 PD 98, 107).[38]Mr Thomas for the Claimants relied on Halsbury’s Laws, vol. 102, “Wills and Intestacy” (2010), para. 98 (“Later inconsistent will”), where it is said “The mere fact of making a subsequent testamentary disposition does not … effect a total revocation of a prior will unless the later disposition expressly or in effect revokes the former, or the two are incapable of standing together”, and authorities are cited. It should also be noted that at para. 99 (“Partly inconsistent wills”) the editors also refer to “The presumption against implied revocation …”. In my view, it is a fair summary of the position to say that there is a presumption against implied revocation, and that an implied revocation will only be found from looking at the terms of successive testamentary instruments where there is established to be a logical inconsistency between them.[39]The first authority cited for the statement in para. 98 of Halsbury is Lemage v Goodban (1865) LR 1 P & D 57. At pp. 62-63 Sir J. P. Wilde gave this guidance:
“Cases of the present character are properly questions of construction, and in deciding upon the effect of a subsequent will on former dispositions, this court has to exercise the functions of a court of construction. The principle applicable is well expressed in Mr. Justice Williams' book on Executors. He says, “The mere fact of making a subsequent testamentary paper, does not work a total revocation of a prior one, unless the latter expressly, or in effect, revoke the former, or the two be incapable of standing together; for though it be a maxim … that as no man can die with two testaments, yet any number of instruments, whatever be their relative date, or in whatever form they may be (so as they be all clearly testamentary), may be admitted to probate, as together containing the last will of the deceased. And if a subsequent testamentary paper be partly inconsistent with one of an earlier date, then such latter instrument will revoke the former, as to those parts only, where they are inconsistent.”
This passage truly represents the result of the authorities. The will of a man is the aggregate of his testamentary intentions, so far as they are manifested in writing, duly executed according to the statute. And as a will, if contained in one document, may be of several sheets, so it may consist of several independent papers, each so executed. Redundancy or repetition in such independent papers, will no more necessarily vitiate any of them, than similar defects if appearing on the face of a single document. Now it was argued that in the case of more than one testamentary paper, each professing in form to be the last will of the deceased, it is necessary for the court, before concluding that they together constitute the will, to be satisfied that the testator intended them to operate together as such. In one sense this is true, for the intention of the testator in the matter is the sole guide and control. But the “intention” to be sought and discovered, relates to the disposition of the testator's property, and not to the form of his will. What dispositions did he intend?—not which, or what number, of papers did he desire or expect to be admitted to probate,—is the true question. And so this court has been in the habit of admitting to probate, such, and as many papers (all properly executed), as are necessary to effect the testator's full wishes, and of solving the question of revocation, by considering not what papers have been apparently superseded by the act of executing others, but what dispositions it can be collected from the language of all the papers that the testator designed to revoke or to retain.” (emphasis in original)[40]This is the principle which has been followed since then: see e.g. Re Petchell (1874) LR 3 P & D 153, 156-157 per Sir J. Hannen. The other authorities cited in Halsbury are Re Summers (1901) 84 LT 271; Townsend v Moore [1905] P 66, CA; Simpson v Foxon [1907] P 54; Reeves v Reeves [1909] 2 IR 521; and Deakin v Garvie (1919) 36 TLR 122, CA.[41]Applying the principle to be derived from the passage from the judgment in Lemage v Goodban set out above, and as distilled in Halsbury, I have reached the conclusion that the 1994 will did not wholly revoke the 1980 will. 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.[42]In reaching that conclusion I have considered carefully the authorities relied on by Mr Grierson for the Defendant in support of his contrary submission, in particular Dempsey v Lawson and In re Hawksley’s Settlements, Black v Tidy [1934] Ch 384. In my view, the position in those cases was materially different from that in the present case. An implied revocation was found in each case because a clear inconsistency between the successive testamentary instruments was identified, so that the presumption against implied revocation was rebutted.

Conclusion

[43]For the reasons set out above, I find that the 1994 will did not wholly revoke the 1980 will. The material part of the 1980 will which leaves the English estate of the Deceased to the Claimants continues to be valid and must now be carried into effect.

Cited in 1 later judgment