The courts are loath to ‘infer’ provisions into any sort of document, let alone one as final as a will, unless there is a compelling reason to do so, so a recent case in which a will made in Italy was challenged is instructive on when the court will take a ‘commonsense’ view of what the testator intended.
The will was made by an Italian man who was married to an English woman. It was made in Italy in 1994, having been preceded by an English will made in 1980.
The English will provided that if his wife predeceased him, the man’s estate should pass to his niece and nephew – the children of his sister. His later will was silent as to what would happen if his wife predeceased him, merely passing his entire estate to her on his death.
His wife did predecease him, dying in 2007. By that time, the man was suffering from dementia and could not make a new will because he lacked the mental capacity to do so.
When the man died, the court had to consider the question of the validity of the Italian will. If it were valid, he would have died intestate, because there was no living beneficiary named in it. His estate would therefore pass to his sister, under both Italian and English law.
If, on the other hand, the English will was still valid, his estate would pass to his nephew and niece.
The High Court looked carefully at his circumstances. The man had clearly demonstrated a lifelong intention to remain in the UK. The 1980 will was very specific and the later will did not contain a clause which specifically revoked it, nor did it deal with what would happen if his wife predeceased him.
The Court accepted, therefore, that the English will should determine the distribution of the man’s estate in England.