Summary

Where an Italian national domiciled in England made two wills, an earlier one in England and a later one in Italy, the former prevailed where the latter did not revoke it. That result was primarily because of the deceased's domicile, which rendered Italian law irrelevant. However, although different, the two wills were not inconsistent and there was no reason why each could not be given their full effect.

Facts

The appellant (C) appealed against a decision that the estate of her deceased brother (D), an Italian national, was properly vested in the respondents (P).

D had married a British national and lived in England from 1955 until his death. In 1980 he made an English will leaving everything to his wife. P were named in that will as beneficiaries in the event that D's wife predeceased him. In 1994 D made a short holographic will in Italy, which named his wife as his only heir. The Italian will contained no express words of revocation and no indication that it was intended to be his last will. D's wife died a year before him. Upon D's death, the issue was whether the Italian will had the effect of revoking the English will. If it did, C would be the sole beneficiary under intestacy rules in both England and Italy. The parties agreed that determination of the issue depended on where D had been domiciled when he died. The court below found that by the time D made the Italian will, England had been his domicile of choice and that Italian law was therefore irrelevant. In case his conclusion on domicile should be challenged, the judge stated that in Italian law, the later will revoked the earlier one, but in English law, the later will only revoked part of the earlier will and that the provision in the English will about what should happen if he was predeceased by his wife remained valid.

C submitted that (1) since the will had been made by an Italian citizen, in Italy, written in Italian and using Italian terminology, D must have intended it to be governed by Italian law; (2) D had forgotten about his first will, and making a second one at a time when his wife had just been diagnosed with a life-threatening illness had to be taken as indicative that he contemplated an intestacy.

Held

(1) D had never become comfortable with the English language and little weight could, therefore, be attached to the fact that the later will was written in Italian. In the absence of any evidence regarding the particular circumstances of the making of the will or the visit to Italy, no significance could be attached to it having been made in Italy. The fact that D was an Italian citizen carried little weight given the presumption as to the effect of domiciliary law. There was also no evidence that the Italian terminology "erede universale", which denoted a sole heir, had a particular meaning in Italian law that went beyond the ordinary and natural meaning of the words. Therefore the factors relied upon by C were wholly insufficient to displace the presumption that D, as an English-domiciled testator possessed of a substantial estate in England, had intended his will to be construed in accordance with his law of domicile (see paras 18-22 of judgment). (2) It was impermissible speculation to presuppose what D had thought when he made the second will. That will was silent as to what should happen if his wife predeceased him, a circumstance for which he had already made express provision in his first will. There was no basis on which it could be reliably inferred that he had intended to revoke that disposition. Since there was no inconsistency between the two wills, there was no reason why each could not be given their full effect (paras 23-25).

Appeal dismissed