ProbateWillsCase Review – Colicci v Grinberg 2023

This article will cover an overview of the recent case of Colicci v Grinberg, 2023 EWHC 1177 Ch which concerns whether a deed created separately to a will restricted the deceased’s testamentary freedom or not.

Facts

Ernesto and Josephine Colicci were a married couple who started an ice cream van business that grew into a major catering business. They had two children, Robert and Rosanna.

Ernesto and Josephine divorced in 2011 with a clean break settlement and signed a shareholders agreement at the time. Ernesto remarried in 2014 to Nora Grinberg.

In 2016, Ernesto and Josephine signed a deed in which they agreed that any shares in the company on death would pass to Robert and Rosanna. In this deed they promised to make wills to this effect.

A new shareholders agreement was put in place in 2017 and Robert and Rosanna were given shares in the company and Robert was named as a director. Shortly after this Ernesto made a new will leaving his shares to Nora.

Nora was not informed of the existence of the 2016 deed or the 2017 shareholders agreement and Josephine, Robert and Rosanna were not made aware of the 2017 will.

Ernesto pass away in January 2021. Josephine, Robert and Rosanna contested the terms of the 2017 will arguing that the 2016 deed should be enforced and the Ernesto’s shares in the company pass to his children.

Decision

Nora attempted to argue that the 2016 deed had been revoked by the 2017 shareholder’s agreement. The 2017 agreement spelled out that the 2011 agreement was superseded by the 2017 agreement, and it was held that if it was the intention that the 2016 deed should have been revoked, the 2017 shareholder’s agreement would have contained explicit reference to this.

It was concluded that the 2016 deed was binding on both Ernesto and Josephine. It created testamentary obligations on them both and removed their freedom to dispose of their shares on death. Ernesto’s shares in the company therefore should pass to Robert and Rosanna.

Nora sought an order to delay transfer of shares pending her bring a claim under the Inheritance (Provision for Family and Dependents) Act 1975 but this was refused.

Comment

This case highlights the need for testators to be sufficiently clear with their intentions. The decision noted that the testator was “conspicuously uncommunicative” and was reluctant to share information with his family or his legal professionals. It was left to the courts to attempt to ascertain his exact intentions and beliefs.

It reminds us that any potentially relevant documents should always be reviewed, particularly in relation to businesses. In the majority of cases, these will not interfere with a testator’s intentions, but there will always be a minority of cases such as this where documents may restrict testamentary freedom in some manner.

Although the order to delay the transfer of the shares was refused, Nora may still apply for permission to being a claim under the Inheritance 1975 Act, so this case may still develop further.