Ex-wife of ice-cream tycoon wins inheritance claim against new wife
After successful businessman Ernesto Colicci died, his ex-wife relied on a deed covenanting that his shares in the family ice-cream business should pass to their two children. Therefore not to his second wife, as specified in his later Will.
Ernesto Colicci came to the UK from Italy in 1982 and married his first wife Josephine. Together they purchased an ice-cream van and started a business. Subsequently, the business expanded, and their two children, Robert and Rosanna Colicci both took an active role.
The business included around 35 concessions in London parks as well as in shopping centres. His stake was valued at £1.6 million and his estate was worth £4.75 million.
Deed covenanting to leave family business to children
The Coliccis divorced in 2011 and Ernesto married Nora Grinberg in 2014. In 2016 Ernesto and his first wife Josephine both signed a deed. The deed covenanted that when they died, any shares they still held in the family business would pass directly to Robert and Rosanna.
In April 2017, Ernesto made a new Will leaving his shares to his second wife. Additionally he appointed her as his executor. His first wife and his children were not told of the existence of this Will.
Also they signed a new shareholders’ agreement. Both Robert and Rosanna were given shares in the business. His second wife was not told of the existence of this agreement.
Claim after death
Ernesto died of Covid aged 66 in 2021. First wife Josephine, Robert and Rosanna contested the Will and asked the court to enforce the 2016 deed.
Second wife Nora claimed that the deed ceased to be valid when the new shareholders’ agreement was made in 2017. Josephine and the children’s claim, was that the deed remained effective or, if not, it should be rectified to address this.
The court’s decision
The court declared the 2016 deed bound Ernesto and Josephine Colicci to its terms. Meaning they could not dispose of their shares elsewhere in their Wills.
The judge, recorder Mark Anderson, noted that Ernesto’s second wife failed to fully disclose her financial position. Therefore, he could make no findings as to the adequacy of the provision made for her by her husband’s Will. In any event, he stated that her financial position was not relevant to the issues he had to decide.
He said: “I accept Ms Reed’s submission that the 2016 deed imposes obligations on Ernesto and Josephine as testators. It confers benefits upon the adult children as beneficiaries, which are different from the subject matter of the 2017 agreement, which concerns the rights and obligations of the parties as shareholders.
“The 2011 agreement permitted a transfer of shares to the adult children on the death of a parent, but did not mandate it.
“The 2016 deed did not contradict or qualify this regime. It made mandatory upon Ernesto’s or Josephine’s death that which the 2011 agreement already permitted.
“Anyone reading the 2017 agreement with knowledge of the terms of the 2011 agreement would conclude that the purpose of the 2017 agreement was to change the 2011 regime to accommodate the introduction of two new shareholders and a new director.
“The 2016 deed could work alongside the 2017 agreement just as readily as it had worked alongside the 2011 agreement.
“In my judgement, Ernesto had no reason to think that the 2017 agreement superseded the 2016 deed and so probably did not think that.
“I think that it is unlikely that he gave the matter any thought at all.”
The judge also declined to allow a stay of his order transferring the company shares to Robert and Rosanna so that Ernesto’s second wife could make a claim for reasonable financial provision. He said no such claim had been made and he was not satisfied that it would stand a reasonable chance of success anyway.
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