Take Care When Making A Foreign Will

A recent case, Curati v Perdoni, 2012 EWCA Civ 1381, illustrates a particular problem that can arise when making a foreign will.

Facts

The testator in this case, Mr Curati, made two wills, English and Italian. The English will was executed first, in 1980, and dealt with Mr Curati's English assets which were left to his wife and, in substitution if she predeceased him, to his wife's nephew and niece. Mr Curati made a separate Italian will in 1994 naming his wife as his sole heir but with no provision as to what should happen if she predeceased him. The Italian will did not refer to the English will nor did it say whether it was intended to exist alongside or replace it.

Mr Curati's wife predeceased him and after Mr Cuarti died, a dispute arose as to which of the two wills was valid. The main question the court had to consider was whether the Italian will revoked the English one, in which case Mr Curati's sister would inherit his estate under the intestacy rules.

The law

Under English law, if a testator makes a second will and does not make clear whether it is intended to revoke his earlier will, the court will treat the earlier will as revoked but only in so far as it is inconsistent with the second will.

Decision

The court decided that the Italian will was not inconsistent with the English will on what should happen if Mrs Curati predeceased Mr Curati, as the Italian will was silent on this subject. The English will therefore remained valid for this scenario and the niece and nephew...