15 August 2023

Ex-wife scoops frozen assets as Will overturned

Ordinarily, a Will is a clear and unchangeable document that declares a deceased’s intent that must be honoured - but this isn’t always so. Sometimes, a Will can be overruled, however specific its intentions. 

This was the case in a recent dispute over the multi-million pound inheritance of a family-owned ice-cream business which the court saw fit to overturn - despite the deceased bequeathing it to his wife and child. 

But why? Let’s explore this fascinating case of how a contractual obligation can supersede a last Will and testament.

An ambitious appetite: Colicci’s booming ice cream business

Almost two-thirds of the UK population don’t have a Will. That’s roughly 30 million people that, if the worst were to happen, would leave no clear pattern of how to distribute their worldly possessions between loved ones.

A Will gives essential clarity on the deceased’s wishes and priorities, alleviating the stress on family relationships that can arise if probate is contested. However, this isn’t always the case.

Before his death in 2021, Ernesto Colicci had built a thriving multi-million-pound ice cream empire. Starting in 1982, Mr Colicci purchased a single ice-cream van with his business partner, Josephine. Over the next 40 years, the company landed contracts across the UK, winning multiple awards and securing kiosks on prime real estate.

During this time, Ernesto and Josephine married and had children before they divorced in 2011 and Mr Colicci subsequently remarried.

Before his death, Mr Colicci’s last Will and testament bequeathed the lucrative £4.9 million business to his new wife and child. However, his ex-wife contested the Will. 

Ernesto had failed to account for an earlier promise he had made to Josephine - which she happened to have in writing. 

A taste of testamentary obligation: overruling a Will

Under his Will, penned in 2017, Mr Colicci would leave his 40% share of the Colicci ice cream empire to his second wife and child, with the understanding that his family from his previous marriage were already looked after; Josephine Colicci had her own 40% share in the business and their two children each have a separate 10% cut. 

However, a judge overturned this decision and passed Mr Colicci’s share of the family business to his first wife.

The reason, like most things in law, lies in a clear precedent. In 2016, Ernesto Colicci had signed a contract with Josephine which posited that, upon their death, they would each leave their shares of the company to each other and their children to safeguard the family business.

While it is not unusual for a person to change their Will or how they choose to distribute their assets before death, the judge ruled that the contract Mr Colicci entered into with his ex-wife created a clear testamentary obligation, which makes it impossible for either party to alter their intentions. 

The case for clarity: expert guidance is integral to inheritance

While this case is unusual, it is an especially interesting example of how a Will is only a binding document in so far as it clarifies a set intent. 

In such scenarios where someone has already made a prior promise of intent to pledge their assets to another cause, if it contradicts a Will, the court can overturn a bequeathal as they see fit. In this sense, the court can ensure a promise is kept even after death.

This is why expert advice is crucial when considering your assets and how to divide them. If you or someone you know is looking to write a Will or explore your options to protect loved ones, get in touch with our expert team of probate specialists today.

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