Perdoni & Anor v Curati

A domicile of choice is acquired only where residence in a territory is accompanied by a freely formed intention to reside there indefinitely. The domicile of origin persists unless satisfactory evidence establishes the change. Later conduct may be relevant only insofar as it assists in determining intention at the material date.

A later will does not impliedly revoke an earlier will merely because it makes a comprehensive gift. Revocation depends on the testamentary instruments being expressly or logically inconsistent. Where the later will is silent about an eventuality expressly covered by the earlier will, both instruments may operate together.

The claimants sought to establish the validity of their uncle’s 1980 will, under which they would inherit his English estate if his wife predeceased him. A later holographic will made in Italy in 1994 appointed the wife as his universal heir but made no express provision for the alternative event of her earlier death.

The parties agreed that the effect of the 1994 will depended on the deceased’s domicile when it was made. The court therefore determined whether he was domiciled in England or Italy and, if necessary, whether the later will revoked the earlier will under Italian law. The central issue under English law was whether the two wills were logically inconsistent.

1. Domicile. The deceased’s domicile of origin was Italian. Applying the approach in In the Estate of Fuld, decd. (No. 3) [1968] P 675, the claimants had to establish residence in England together with an intention, freely formed and continuing, to reside there indefinitely. The court was satisfied that this intention existed by 20 September 1994. His long residence, marriage, English marital home, business interests, property holdings and his wife’s established need for treatment in England outweighed later expressions of a possible wish to return to Italy.
2. Evidence of subsequent acts and statements could be considered only insofar as it enabled an inference about the deceased’s intention at the date of the 1994 will. The later evidence did not show that he had lacked the necessary intention in 1994.
3. Italian law. The court considered Article 682 of the Civil Code and the Italian Court of Cassation’s 2009 judgment in Case No. 10800. If Italian law had applied, the court would have held that the 1994 will revoked the 1980 will because of functional incompatibility between appointing the wife universal heir and the earlier substitution in favour of the claimants.
4. English law. The effect of a later will is determined objectively from the instruments. There is a presumption against implied revocation. Following Lemage v Goodban (1865) LR 1 P & D 57, revocation arises only where the later instrument expressly or effectively revokes the earlier one, or where the dispositions cannot logically stand together.
5. The 1994 will did not wholly revoke the 1980 will. It governed the position if the wife survived the deceased, while the 1980 will made separate provision for the English estate if she predeceased him. The instruments were therefore capable of operating together. The claimants’ relevant provisions under the 1980 will remained valid and were to be carried into effect.