Probate disputes where there is a contest over wills

It is not uncommon for a person to make more than one will in their lifetime. Unsurprisingly, disputes often arise where a person has made more than one will. In these circumstances the court has the unenviable task of deciding the contest over which will is valid. We examine the circumstances in which the problem may arise, a recent case example and what ought to be done to avoid probate disputes.

Why would a testator leave more than one will?

The main reason why the person who has died (the testator) may have left more than one will is due to the fact that their financial circumstances had changed during their lifetime. Another reason may be that the person had changed the beneficiaries of their will for example due to them having a falling out with a particular beneficiary. It is the latter circumstance which generally creates more contention about which will is valid.

There are those who may have assets in various countries and may have a will in each country to deal with the assets in that particular country. In these circumstances the will should state clearly and in no uncertain terms that the will relates to the assets in a particular jurisdiction. However, what is the position, if someone has two wills, made at different times, in two different countries, with different beneficiaries?

Disputed wills: Carmen Curati -v- Sylvana Perdoni

The recent case of Carmen Curati -v- Sylvana Perdoni [2012] EWCA Civ 1381 gave an indication of how the courts would deal with the situation where two wills competed over the disposition of an estate. The case concerned a will made by the deceased multi-millionaire, Piero Curati (Pierluigi Curati), in England in 1980 and a second subsequent will made in Italy in 1994. Here the 1980 will stated that the deceased’s wife would be the sole beneficiary, however if the wife predeceased her husband (which in this case did happen) then the deceased’s niece and nephew would benefit from the deceased’s estate. The 1994 will was a short will which stated that the wife would be the sole heir. However as the wife died before her husband, and if the 1994 was held to be valid then, the rules of intestacy came into force, which meant (under both English law and Italian Law) that the husband’s sister, who lived in Italy would be the beneficiary.

It seems that the 1994 will was ambiguous to say the least, as it made no mention of the effect of previous wills, nor did not it point to which assets the will included and it failed to indicate which law should govern the will.

The court was therefore faced with the following two main issues:

  1. Whether the 1994 will revoked the 1980 will; and
  2. Whether the 1994 will should be governed by Italian law or English Law

In relation to revocation the court explored potential hypotheses about the deceased intention by the creation of the second will. The court concluded that there was nothing to suggest that the 1994 will revoked the 1980 will. Here the court applied a high threshold using the cases of Dempsey -v- Lawson [1877]  and Re Hawksley’s Settlements, Black -v- Tidy [1934]. The court came to the view that even theses cases where there was clear indication that earlier wills were to be revoked or ‘cancelled’, the earlier wills were still held to be valid to some degree, then it could not possibly conclude that the 1980 will had been revoked in its entirety.

Dealing with the governing law, the court applied the law which that “the construction of a will is governed by the law intended by the testator”. The law considers whether the will is of movables or immovables and will consider the domicile of the testator as the time of the execution of the will. Bringing us back to the case in question, the courts concluded that the fact that it was made in Italian by an Italian citizen and was made in Italy did not in itself give rise to the fact that that Italian law should be applied.

Avoiding a probate dispute or contest

This case highlights the obvious need for what can be referred to as the ‘3Cs’  of will writing (clarity, certainty and  careful consideration). The ‘3Cs’ should be used when testators are preparing their wills, especially if they have more than one will in different countries. Lawyers often explain to their clients, (when drafting wills or other agreements for that matter) that not every eventuality can be foreseen and therefore not every eventuality can be accounted for. However, careful consideration should be given when new wills are being drafted for the same person; the effect of earlier will(s) must be carefully considered in further detail before the testator makes another will. This process inevitably leads to less disputes in relation to which will is valid. Furthermore, the ‘3Cs’ will assist personal representatives when they are carrying out their duties and ensure that the deceased’s intentions are complied with.