Family disputes and changing intestacy rules

Having a will is sometimes not enough to avoid intestacy. A will search by a probate genealogist will help to ensure the relevant will is applied but the latest will does not always take precedence especially if there is an international dimension.An Italian restauranter, Perlugi Curati, who lived in London and had his business there, made a will in 1980 leaving his £2.1m English estate to his wife, or, if she should predecease him to her brothers children. In 1994 he made a second will, this time in Italy, in which he named his wife as his sole beneficiary or Erede Universale. As his wife had died a year before him the 1994 will would mean that the estate would become intestate and would pas to Mr Curati’s sister.

In Perdoni & Perdoni v Curati [2011] EWHC 3442 (Ch) [2012] All ER (D) 26 (Jan) the niece and nephew challenged the 1994 will. The court decided that under English law and in respect of the English estate, there was no express revocation clause in the 1994 will whereas the 1980 will made express provision for that eventuality. Despite the fact that the deceased maintained a close commection to Italy including property and his Italian citizenship the court noted that Mr Curati had made England his country of domicile and ruled that the 1980 will remained valid and the estate of the deceased should pass to the niece and nephew.

Despite good reason, disinherting a family member, paticularly a child, may in some jurisdictions still be invalid. In Massachusetts USA Walter V Haley left his adopted daughter $1 in his will after she threatened to burn down his house with him in it. He left the rest of his estate to his good friend and executor Richard Landers.

The adopted daughter Lisa Purcell challenged the will as Massachusetts law infers undue influence when someone leaves all or part of their estate to someone who is not the “natural object of the decendent’s bounty” which would usually be a son or daughter.

The appeal court has yet to rule in the case, Purcell v Landers (Case No 10-P-1757, 2011 Mass App), as because under rule 1:28 the trial judge ‘Inappropriately shifted the burden of producing witnesses’ to Ms Purcell, the palaintiff, and requires further testimony.

Gurnsey has many attractions apart from it’s natural beauty, no sales taxes or VAT, no capital gains or wealth taxes, an income tax cap and no estate or death duties. To this list can now be added testatory freedom.This is due to the introduction of the Inheritance Gurnsey law 2011 which replaces the ancient Norman law of forced heredity. Under the old law island domiciled residents were forced to leave at least part of their estate to any surviving spouse or children. Under the new law there is no such restriction and, new rules of intestacy will spply.

Now there is an order of inheritence down to the remotest seventh degree of inheritance from the spouse or civil partner, the downside being that challenges on financial provision grounds could lead to more disputes.

There are always cases with moral claims that still reach intestacy, but proposals by the Law Commission to reform intestacy laws could take some cases away from the Treasury Solicitor and keep them out of the courts. One proposal is that a surviving partner will have an automatic entitlement if they can prove they lived together for five years or longer.

Finders proactive approach means they can help solicitors with such cases by carrying out ‘detective’ work to establish cohabitation. Finders also offer a will search service and maintains an international network to help with cases that cross borders. As an experienced professional probate genealogy company, Finders can help solicitors with more than just a missing heir search and location service.

For further information and advice contact Finders, 6-8 Vestry Street, London N1 7RE 020 7490 4935

Daniel Curran
Written by Daniel Curran
Daniel is a leading figure in the UK Heir Hunting industry. He is from Isleworth in West London and has lived in London for most of his life. He has been in the probate genealogy profession since 1990. He formed Finders in 1997 after 7 years at another firm.