On 18 August 2023, the English High Court of Justice issued a groundbreaking judgement (Del Curto v. Del Curto). The (previous) certainties about the impossibility of enforcing in the United Kingdom the rights of legitimate heirs according to a foreign legal system, like Italy, are now compromised.
The English system is based on complete testamentary freedom and does not know the figure of the statutory reservation of inheritance in favour of the closest family members (“legitimates”). It is clear the difference with the provisions of Italian civil code whereby a share of the estate is compulsory reserved by law to certain subjects, including the children of the deceased without any distinction between legitimate and natural (formerly “illegittimate” i.e., born outside the marriage) children.
Consequently, it is commonly held that the assets located in England that belonged to a deceased Italian citizen cannot be attached by his legitimates.
Moreover, it is believed that the exit of the United Kingdom from the European Union (‘Brexit’) has made recognition and enforcement of Italian judgements even more difficult.
But is this really the case?
The events
The natural daughter of an Italian citizen, who died in Chile, obtained from an Italian court an enforceable judgement that orders her siblings (legitimate children) to pay her a sum equivalent to the 2/9th plus interests of the deceased worldwide estate, i.e. to the share of the inheritance to which she is entitled under Italian law, that governed the succession at the time of her father’s death. Incidentally, currently under the European Succession Regulation (Reg. (EU) No 650/2012 of the European Parliament and of the Council dated 4 July 2012) the law of the place of his last habitual residence, i.e. Chilean law, would have been applicable.
The daughter applied for registration of the judgement in England, where her brother lives, and obtained it.
The Court applied the Act 1933 on the recognition of foreign court decisions for the first time in matters of succession, with an innovative interpretation, considering it applicable even to successions.
By virtue of this decision, the daughter, who was not considered in the estate, is now entitled to obtain from her brother the payment of what is due to her by virtue of the Italian court’s decision.
The judgement of the English court thus does justice to legitimates. The assets located in the United Kingdom would no longer be protected. Hopefully, the judgement will be confirmed in second instance.
