Case No: A3/2012/0067
Neutral Citation Number: [2012] EWCA Civ 1381
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Justice Sales
[2011] EWHC 3442 (Ch)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 31/10/2012
Before :

LORD JUSTICE PILL

LORD JUSTICE MUNBY
and
LORD JUSTICE TOMLINSON
- - - - - - - - - - - - - - - - - - - - -
Between :

	Carmen Curati	Appellant	
	- and -		
	(1) Sylvana Marchant Perdoni
(2) Roberto Perdoni	Respondents	

- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Mr Robert Grierson (instructed by Cree Godfrey & Wood) for the Appellant
Mr Nigel Thomas (instructed by Debenhams Ottaway) for the Respondents

Hearing date : 9 October 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Tomlinson : 
1.	This appeal concerns the effect of two wills made by Pierluigi Curati, (“the Deceased”), an Italian national born in 1927 who came to England in 1955 and lived here for the rest of his life.  He died in 2008, having been predeceased by his wife, Emilia Perdoni, in 2007.  Emilia Perdoni was born and brought up in England and was a British national, albeit her parents were Italians who emigrated to London after the First World War.  Under the law of Italy women now apparently retain their maiden surnames.  Since the Deceased and Emilia Perdoni married in England in July 1955 and lived here for the rest of their lives I will call the Deceased’s wife, as did the judge, Mrs Curati.
2.	Between 1955 and the late 1970s the Deceased and Mrs Curati worked and prospered in the restaurant trade.  They had a restaurant in Camden which had until the mid-1950s been owned and run by Mrs Curati’s parents.  Shortly after the marriage of the Deceased and Mrs Curati in 1955 Mrs Curati’s parents transferred the restaurant to their daughter and son-in-law.  Thereafter they both worked in the restaurant.  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.
3.	The Deceased and Mrs Curati had no children.  On 18 December 1980 the Deceased made a will in London written in English and drawn up as a formal document.  It included the following terms:-
“I . . . DECLARE this to be my last Will –
“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; …”
At the same time Mrs Curati made a will mirroring those terms.  Silvana Perdoni and Roberto Perdoni are the niece and nephew of Mrs Curati, being the children of her brother.  They were the Claimants in the action and are the Respondents to this appeal.
4.	On 29 September 1994 the Deceased made a short holographic will in Italy, written in Italian, in which he named his wife as his “erede universale”.  “Erede” means heir.  There were before the court at trial two translations of the phrase ‘erede universale’, sole heir and universal heir.  It was agreed before us that it is immaterial to the outcome of the appeal which translation is adopted.
5.	The question for decision at trial was 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 Deceased had a sister, Carmen Curati, who lives in Italy.  She would be the sole beneficiary under the rules governing an intestacy, whether under English law or under Italian law.  Carmen Curati was the Defendant in the action, and is the Appellant on this appeal.  
6.	An issue arose at trial 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 at trial that the law to be applied depends upon the country of domicile of the Deceased in 1994 when he made the  will.  The Claimants at trial maintained that the Deceased was domiciled in England at that time, so that the law of England applies.  The Defendant said that he was domiciled in Italy at that time, so the law of Italy applies.
7.	The Claimants maintained at trial 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 maintained at trial 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 as to the law of Italy, Dr Gatto for the Claimants and Professor Frigessi for the Defendant.  They gave conflicting evidence.
8.	Sales J decided that the Deceased had made England his domicile of choice by the time he made the 1994 will.  Italian law was therefore irrelevant, but in case his conclusion on domicile should be challenged the judge helpfully set out his findings in the light of the contest on the evidence.  He concluded that as a matter of Italian law the 1994 will would be regarded as effective to revoke the 1980 will.  Because of the particular function and status accorded to an heir by Italian law, viewed in the light of that system of law the two wills are “functionally incompatible” and the later will revokes the earlier.
9.	Sales J went on to decide, as he had to, whether as a matter of English law the later will likewise was to be regarded as revoking the earlier will.  This is a question of construction, as pointed out by Sir J P Wilde, later Lord Penzance, in Lemage v Goodban [1865] LR 1 PD 57 at page 62.  The short second will consists of no more than the nomination of Mrs Curati as erede universale.  Indeed it contains only three operative words apart from names and dates, “nomino erede universale”.  It contains therefore no express words of revocation and no words indicative that it is intended to be the last will of the Deceased.  The judge concluded that the 1994 will did not wholly revoke the 1980 will.  He expressed his conclusion thus, at paragraph 41 of his judgment:-
“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.”
Accordingly, the judge concluded that that part of the 1980 will which left the English estate of the Deceased to the Claimants/Respondents is valid and should be carried into effect, the Deceased’s wife having predeceased him.  
10.	The Appellant Carmen Curati appeals on two grounds.  First, she seeks to abandon the common ground adopted at trial that it is the law of the Deceased’s domicile at the date of execution of the will which governs the construction of that will.  Somewhat bizarrely Mr Grierson for the Appellant complains that the judge “entirely failed” to consider the question whether the presumption that the law of the domicile should apply is here rebutted by the testator’s intention to a different effect.  Notwithstanding the adversarial nature of proceedings before an English court, it is, submitted Mr Grierson, for the court to apply the law rather than for the parties to agree it and this is a point which the judge could and should have taken of his own motion.  The explanation for the judge not having been invited to consider that question is apparently that the Appellant was confident of establishing at trial that the Deceased had never abandoned his Italian domicile of origin, a conclusion which if established might have some relevance to the incidence of UK inheritance tax on the Deceased’s estate in Italy.  Indeed, Mr Grierson told us that those on the Appellant’s side had been “flabbergasted” by the judge’s decision to the contrary effect.  Manifestly none of this offers a remotely acceptable explanation for not having invited the judge to consider the question of governing law on the contingent possibility that he might determine domicile as he did, but Mr Thomas for the Respondents did not suggest that the Appellant was precluded from maintaining before us the argument that the testator’s manifest intention was that the law of Italy should govern the construction of his will made in Italy and in the Italian language.  The second ground of appeal is that the judge erred in holding that as a matter of English law the 1994 will did not impliedly revoke the 1980 will.  There is no appeal against the judge’s conclusion that by 1994 the Deceased had made England his domicile of choice, which appears to me to have been based on overwhelming evidence.  For what it is worth, I would myself have been surprised had the judge reached a different conclusion.
11.	It is unnecessary for the purposes of considering these questions or rendering this judgment comprehensible to rehearse all of the judge’s careful findings of fact, many if not most of which were relevant to domicile.  The curious can find the judge’s judgment at [2011] EWHC 3442 (Ch).  It is however relevant to note that the Deceased was from the age of six brought up in the small town of Carpaneto, near Piacenza where he was born.  His parents ran a restaurant and hotel in the town.  He himself worked there for many years before leaving Italy in 1955 “to improve his economic conditions” as his sister’s son put it in evidence to the judge.  It was in Carpaneto that the Deceased met his future wife, whose parents were themselves from Carpaneto to which they used frequently to return with their daughter.  The Deceased and Mrs Curati conversed in the dialect of Carpaneto.  Whilst the Deceased never mastered English, he had a sufficient grasp of it to conduct his business.  Where necessary Mrs Curati interpreted for him at formal meetings.  Mrs Curati for her part never mastered the official language of Italy.  They were devoted to each other and inseparable.  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 Carpaneto.  According to Ms Perdoni, and as the judge accepted, that is not unusual as many Italians want to be buried with family in this way.  On the death of his father in 1980 the Deceased inherited an apartment in Carpaneto in which his parents had lived.  The Deceased let it out to third parties rather than retaining it for the use of himself and his wife.  Over time, between them they built up a portfolio of investment properties in Italy in parallel with the property portfolio in England.  They also retained certain Italian properties for their own use, including in Carpaneto itself.  The Deceased was very proud of the fact that a street in Carpaneto had been named after his brother Paolo in acknowledgement of his death in 1944 fighting for the partisans.  The judge was satisfied that the use by the Deceased and his wife 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.
12.	In 1992 Mrs Curati was found to have 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 National Health Service.  The cancer was operated on and treated, but was never completely cured.  However Mrs Curati lived until 2007.
13.	It was in 1994 that the Deceased made the holographic will and at the same time Mrs Curati made a similar short will mirroring its terms.
14.	The judge made the following further findings:-
“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.”
15.	The judge held that the evidence regarding the change by Mrs Curati of her will does not assist in resolving the issues in dispute in these proceedings.  Mr Grierson tried faintly to suggest that it might be possible to infer therefrom some possible disenchantment with the Claimants.  I do not agree.  Mrs Curati’s activities in 2007 cast no let alone reliable light upon the likely intention of the Deceased when making his will in 1994.
Governing law
16.	It is trite that that the construction of a will is governed by the law intended by the testator.  In Halsbury’s Laws of England, Fifth Edition, Volume 19, 2011, at paragraph 750 it is stated:-
“The construction of a will is governed by the law intended by the testator.  In the case of a will of movables, this is presumed to be the law of the testator’s domicile at the date of execution of the will, but this presumption is rebutted by any sufficient indication that the testator intended his will to be construed according to the law of another country.  The testator’s intention may be expressed in the will, or it may be implied from circumstances such as his use of a particular language, or of expressions known only to a particular law.
Prima facie, a will of immovables must be construed according to the law of the testator’s domicile at the date of execution of the will, but this presumption may be rebutted by any sufficient indication that the testator intended to refer to some other law, as where he uses the technical language of the country where the immovables are situated.”
17.	Mr Grierson ultimately relied on four matters as sufficiently indicating the Deceased’s intention that the 1994 will should be governed by the law of Italy:-
(1) it is in the Italian language;
(2) it uses the Italian legal terminology “erede universale”;
(3) it was made in Italy;
(4) it was made by an Italian citizen.
18.	In Re Cunnington, Healing v Webb [1924] 1 Ch 68 an English citizen domiciled in France made a will in England in the English language and in English form in which his residuary estate in England was left to English residuary legatees.  Eve J held that there was no sufficient indication in the will, either express or implied, that the testator desired that it should be construed in accordance with English law rather than the law of his domicile.  In the light of that decision Mr Grierson accepted that his grounds 1 and 3 would not of themselves be decisive, and the same is true of ground 4.  Mr Grierson relied upon the cumulative effect of his four grounds.
19.	Since the Deceased was not comfortable (in the judge’s expression, not at home) in the English language, little if any weight can be attached to the circumstance that the will was written in the Italian language.  There is no evidence as to the specific circumstances in which the 1994 will was made or as to the circumstances of the visit to Italy in the course of which it was made.  In those circumstances no particular significance can be attached to the fact that the will was made in Italy.  The fact that the Defendant was an Italian citizen is of little weight, given the presumption as to the effect of the domiciliary law.
20.	The second of Mr Grierson’s grounds is simply not made out on the evidence.  We were directed to no evidence to the effect that the words “erede universale” are in Italian law a term of art.  We were directed to evidence that in Italian law an heir has a particular function and status, but we were shown nothing to indicate that the words in question are other than ordinary words of the Italian language bearing their ordinary and natural meaning.  The words themselves are not shown on the evidence to have a particular meaning in Italian law which goes beyond their ordinary and natural meaning.  The judge said at paragraph 17 of his judgment that “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.”  The judge does not identify the evidence to which he was there referring and we were not shown it.  However, it is plain that the meaning of this phrase, whether in Italian or in English, is no different whether looked at through the lens of Italian or English law.  
21.	In my judgment the factors relied upon are wholly insufficient to displace the presumption that this English domiciled testator possessed of a substantial estate in England intended his will to be construed in accordance with the law of his domicile.  He was proud of his marital home and his intention to reside indefinitely in England had, on the judge’s findings, been reinforced still further in 1992.  The judge said this:-
“6(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;”
22.	Had the 1994 will on its proper construction extended only to the testator’s estate in Italy, as ironically the Respondents unsuccessfully contended at trial, then the argument that it was intended to be governed by Italian law would be at any rate the stronger.  However the judge concluded, at paragraph 41 of his judgment, that had Mrs Curati not died before her husband she would have taken the whole of his estate by operation of the 1994 will.  There is no appeal against that conclusion and it was I think in any event an inevitable conclusion given the agreed meaning of “universale”, where qualifying “erede”, as sole or universal.  I therefore reject the belated attempt to rebut the presumption that it is the domiciliary law which governs the construction of the 1994 will.
Construction
23.	I have already set out above the judge’s reasons for the conclusion which he reached.  Before reaching that conclusion he directed himself as follows:-
“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.”
He then set out a long passage from the judgment of Lord Penzance in Lemage v Goodban, to the opening sentence of which I have already referred at paragraph 9 above.
24.	Mr Grierson’s written submissions in support of this ground of appeal proceed from the mistaken premise that the judge had construed the 1994 will as relating only to the Deceased’s estate in Italy.  In his oral submissions he pointed out that had the testator intended to preserve his earlier will he could simply have provided in his 1994 will that he gave all his estate in Italy to his wife.  Indeed he could have done, as equally he could have included an express preservation of the earlier will, but either hypothesis presupposes that he had in mind the effect of the first will.  Mr Grierson submitted that on the hypothesis that the testator had forgotten about the first will, so the making of the second will so soon after his wife had been found to be suffering from a life-threatening condition must be taken to be indicative that he contemplated an intestacy.  That presupposes not just that the testator had forgotten about the first will but that he was conversant with the concept of intestate succession, a presumption which is made the more problematic in the case of a person whose heritage lies in a system of law which may be more prescriptive than our own as to the permitted disposition of estates.  All this is in my judgment impermissible speculation.  As Lord Penzance put it in the passage to which I have already referred, “The will of a man is the aggregate of his testamentary intentions, so far as they are manifested in writing.”  We have only his language from which to deduce his intention.  His later will is definitive as to the extent of the gift, but silent as to what is to become of it in the event of his wife predeceasing him.  That is a circumstance for which in his earlier will the Deceased had made express provision, and I can see no basis upon which it can reliably be inferred that the testator intended by his second will impliedly to revoke that disposition.  There is no inconsistency between the two wills and no reason why each should not be given its full effect.
25.	The judge thought that neither Dempsey v Lawson [1877] 2 PD 98 nor In Re Hawksley’s Settlements, Black v Tidy [1934] Ch 384 assisted Mr Grierson since in each of those cases an implied revocation was found because of a clear inconsistency between the successive testamentary instruments.  In Dempsey the second will was both expressed to be the last will, not of course conclusive, and varied and repeated various requests made in the first will.  Sir James Hannen P concluded that “[the] whole scheme of the will of 1860 shows that it was intended to be a substitution for the will of 1858.”  In the second case, Hawksley, the second will was described as the last will and moreover referred to the first will as the cancelled will, the testatrix having written on a copy of it the word ‘cancelled’.  Neither feature was held sufficient to effect a complete revocation of the earlier will.  What was conclusive in that regard was that the second will was wholly inconsistent with the first.  I am afraid that I simply cannot agree with Mr Grierson’s submission that in the present case there is a still stronger indication of an intention to revoke than was found in those two cases.  The 1994 will does not demonstrate an intention that in the event of the Deceased’s wife predeceasing him there should be an intestacy and that the first will should be revoked in order to achieve that end.  The 1994 will of itself says nothing from which any intention to achieve an intestacy can be inferred, still less in respect of the English estate.  Construed as it should be in the light of the first will, the more likely inference from the second will is in my view that the first will was intended to be preserved.  It is however unnecessary to go that far.  There is simply nothing from which an intention to revoke the earlier will can be deduced.  There is no need to resort to the presumptions against revocation and intestacy.  The judge’s conclusion was in my view plainly right. 
26.	I would dismiss this appeal.
Lord Justice Munby :
27.	I agree.
Lord Justice Pill :
28.	I also agree.