Home Information Cases Sylvana Marchant Perdoni, Roberto Perdoni v Carmen Curati (2011)

Skip to content. | Skip to navigation

Sylvana Marchant Perdoni, Roberto Perdoni v Carmen Curati (2011)

Summary

A presumption against a later will impliedly revoking an earlier will was not rebutted where there was no logical or material inconsistency between the two wills. In the circumstances, an inheritance to beneficiaries under an earlier will was valid as the terms of the wills were otherwise consistent, although no provision had been made for them in a later will.

Facts

The claimants (P) sought to establish that a will made by their deceased uncle (D) was effective. Under a will executed in 1980, D had left his English estate to his wife. In the event that D's wife were to predecease him, the estate was to pass to P. In the event, D's wife did predecease D. P's claim under that will depended on the effect of a holographic will D had executed in Italy in 1994, under which his wife was the sole or universal heir; her death prior to D meant that an intestacy arose under that will. If the 1994 Italian will were valid the defendant (C) stood to inherit under the rules of intestacy. The issues to be determined included whether (i) English or Italian law was applicable, which hinged on D's domicile in 1994; (ii) the 1994 will had implicitly revoked the 1980 will.

Held

(1) D had formed the requisite intention to reside indefinitely in England by the date of the 1994 will and had therefore by that date acquired England as his domicile of choice. Accordingly, the effect of the 1994 will on the 1980 will fell to be determined according to English law (see paras 27-28 of judgment). (2) As there was no express revocation clause in the 1994 will, the question whether the 1980 will had been revoked depended on whether it had been revoked by implication; that is, whether it was the testator's intention, to be collected from the instrument, that the dispositions of the earlier will should remain in whole or part operative, Dempsey v Lawson (1876-77) LR 2 PD 98 PDAD applied. However, there was a presumption against implied revocation; an implied revocation could only be found from looking at the terms of successive testamentary instruments where there was a logical inconsistency between them. In the instant case, the 1994 will did not wholly revoke the 1980 will. There was no material inconsistency between them, save that had D's wife not died before him, she would have taken the whole of his estate under 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. There was no inconsistency or incompatibility between the two wills, Lemage v Goodban (1865-69) LR 1 P & D 57 Ct of Probate applied, Dempsey v Lawson and In re Hawksley’s Settlements, Hawksley's Settlement, Re (1934) Ch 384 Ch D considered. Accordingly, the material part of the 1980 will leaving the English estate to P continued to be valid (paras 37-38, 41-43).

Judgment for claimants

Chancery Division
Sales J
Judgment date
20 December 2011
References

​LTL 22/12/2011 : [2012] WTLR 505 : 14 ITELR 725