Forced Heirship Forced Into England And Wales (In Del Curto v Del Curto)?

• Published date: 23 October 2023
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Trials & Appeals & Compensation, Wills/ Intestacy/ Estate Planning
• Law Firm: Macfarlanes
• Author: Damiano Sogaro, Jenny Bird and Edward Reed

English lawyers can often be heard confidently asserting that forced heirship is unknown in their jurisdiction; the idea that the law obliges an individual to give a certain portion of their estate to (or otherwise make provision for) another is generally considered to be a practice restricted to civil (Napoleonic) law or Islamic systems.

However, as with all simplifications caveats are required. The most common, domestic caveats are the English intestacy rules and the Inheritance (Provision for Family and Dependants) Act 1975, which in certain circumstances allows third parties to make claims against an estate. In conflicts law, another caveat would be that England will recognise forced heirship in relation to moveable property where the deceased was not UK domiciled, even though it doesn't exist domestically. The case of Del Curto v Del Curto¹ raises another caveat: forced heirship by the backdoor through litigation.

What relates Chile to Italy to England?

Mr Davide Del Curto was an Italian national who died in Chile in a helicopter accident in 1983. Three children survived him: the two eldest, Julian and Gloria, were born in wedlock and were therefore "legitimate", whilst the youngest, Rita, was born out of wedlock and was therefore "illegitimate". Relations between the siblings were not good.

Mr Del Curto had assets in numerous jurisdictions, including Italy, Switzerland and Chile. Mr Del Curto's will (which did not make provision for any of his children) did not cover his Chilean assets. Accordingly, his Chilean estate passed to his legitimate children (and their mother) pursuant to the Chilean intestacy rules in force in 1983. Those rules did not provide for illegitimate children and so Rita did not receive any part of her father's Chilean estate.

Rita brought a claim in Italy under the (wider) Italian forced heirship rules for 2/9^ths of her father's worldwide estate (being her entitlement under Italian forced heirship rules, since her father was an Italian citizen at the time of his death). An Italian tribunal awarded Rita a right to the inheritance in Italy on 4 February 2022. The two elder siblings did not make any payments.

Rita sought to register the Italian judgment in England against Julian, who was resident in the UK.

The English question

The starting position under English common law is that a foreign judgment that creates an obligation actionable in England cannot be enforced except by commencing new proceedings in which the foreign...