Protecting The Family Wealth: Colicci & Ors v Grinberg & Anor [2023] EWHC 1177 (Ch)

• Published date: 06 July 2023
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: Wright Hassall
• Author: Ms Anna C. Sutcliffe

Family background

Ernesto Colicci died unexpectedly on 18 January 2021 at the age of 66. Ernesto and his first wife Josephine married in 1982 and set up a business selling ice-cream from vans which grew over time to operating catering outlets in public places. A company was incorporated in 2003 and the business transferred into it. The shares in the business were held equally by Ernesto and Josephine.

After finishing their formal education Ernesto and Josephine's two adult children (Robert and Rosanna) joined the business as employees.

Ernesto and Josephine divorced in 2011 and Ernesto married his second wife (Nora Grinberg) in 2014. Nora was the executor of Ernesto's will.

Legal Background

When Ernesto and Josephine divorced in 2011 although they negotiated a clean break, they remained in business together. At that time, they entered into a shareholder's agreement ("the 2011 agreement"). The 2011 agreement allowed Ernesto and Josephine to transfer their shares during their lifetime to their adult children, but prohibited lifetime transfer to anyone else except by consent of both shareholders. Upon the death of the first of them, the survivor had the right to acquire (at full value) any of the deceased's shares not passing to the children.

During 2015 Nora and Ernesto prepared to welcome a new child and so did Josephine and her new partner. In December 2015 Ernesto and Nora instructed a solicitor to draft wills for them. The will was prepared on Ernesto's behalf to the effect that some of his shares (and two properties) were split equally between Robert, Rosanna and his forthcoming child, the residue being left to Nora. A will to that effect was signed by Ernesto on 9 March 2016.

Although the relationship between Josephine and Nora had been good, relations soured and on 12 May 2016 Nora and Ernesto made new wills which removed Josephine as their child's guardian. Otherwise, Ernesto's second will remained substantially the same.

In light of the new additions to Josephine's and Ernesto's families Robert spoke with his parents to seek reassurance that he and Rosanna would inherit their shares in the company in due course. Neither parent expressed disagreement. On 22 April 2016 Ernesto and Josephine met with a solicitor and Ernesto indicated that he would be willing to make a will leaving his shares to the adult children. He did not mention that he had already made a will on 9 March which left his infant child 1/3 of those shares.

Only three weeks after...