Forced heirship forced into England and Wales (in Del Curto v Del Curto)?

20 October 2023

English lawyers can often be heard confidently asserting that forced heirship is unknown in their jurisdiction; the idea that the law obliges an individual to give a certain portion of their estate to (or otherwise make provision for) another is generally considered to be a practice restricted to civil (Napoleonic) law or Islamic systems.

However, as with all simplifications caveats are required. The most common, domestic caveats are the English intestacy rules and the Inheritance (Provision for Family and Dependants) Act 1975, which in certain circumstances allows third parties to make claims against an estate. In conflicts law, another caveat would be that England will recognise forced heirship in relation to moveable property where the deceased was not UK domiciled, even though it doesn’t exist domestically. The case of Del Curto v Del Curto1 raises another caveat: forced heirship by the backdoor through litigation. 

What relates Chile to Italy to England?

Mr Davide Del Curto was an Italian national who died in Chile in a helicopter accident in 1983. Three children survived him: the two eldest, Julian and Gloria, were born in wedlock and were therefore “legitimate”, whilst the youngest, Rita, was born out of wedlock and was therefore “illegitimate”.  Relations between the siblings were not good. 

Mr Del Curto had assets in numerous jurisdictions, including Italy, Switzerland and Chile. Mr Del Curto’s will (which did not make provision for any of his children) did not cover his Chilean assets. Accordingly, his Chilean estate passed to his legitimate children (and their mother) pursuant to the Chilean intestacy rules in force in 1983. Those rules did not provide for illegitimate children and so Rita did not receive any part of her father’s Chilean estate.

Rita brought a claim in Italy under the (wider) Italian forced heirship rules for 2/9ths of her father’s worldwide estate (being her entitlement under Italian forced heirship rules, since her father was an Italian citizen at the time of his death). An Italian tribunal awarded Rita a right to the inheritance in Italy on 4 February 2022. The two elder siblings did not make any payments. 

Rita sought to register the Italian judgment in England against Julian, who was resident in the UK.

The English question

The starting position under English common law is that a foreign judgment that creates an obligation actionable in England cannot be enforced except by commencing new proceedings in which the foreign judgment itself is the cause of action. This effective re-litigation of the case can be slow and expensive.

But the starting position is modified by certain legislative provisions.2 A key consequence of this legislative intervention is that a judgment creditor (an individual owed money pursuant to a foreign judgment) can apply to register a foreign judgment in England as if it were an English judgment, provided certain conditions are met.

The High Court was asked to determine whether it was right to register the Italian tribunal’s decision in England. The High Court allowed the registration for the following reasons.

  • The legislation that allows the registration of a foreign judgment requires that there is “payable under [the judgment] a sum of money”.

Julian’s argument in defence was that (i) a precise sum needed to be set out in the judgment seeking to be registered; (ii) the calculation of that amount cannot come from other documents, e.g. referred to in the judgment; and (iii) the judgment was in fact about the restitution of assets in specie (i.e. the assets themselves) rather than a specific amount.

The High Court disagreed on every ground: there is no obligation for a judgment to state expressly the amount payable and, if it is calculated by reference to another document (in this case a valuation report of the deceased’s estate), that is expressly referenced and approved in the judgment, this is not an issue. The High Court found that the judgment was clearly for an amount of money rather than a restitution of the assets themselves, many of which had been sold or dispersed by the two elder siblings.

  • The judgment effectively created a debt (i.e. a personal right as against the elder siblings) and did not create any proprietary rights, that might have been inappropriate for the English court to enforce.
  • The debt could be satisfied by any part of the estate (or, perhaps more accurately, the sale proceeds of the estate). Therefore, there was no concern that the Italian tribunal did not have jurisdiction to make the decision (which might have been the case, for example, if the subject of the debt was immovable Chilean property).

The result of this decision is that the Italian tribunal’s judgment, ultimately ordering the elder siblings to pay Rita her c. €13,000,000 share of her father’s estate, is also enforceable in England.

Why does it matter?

This case is an essential reminder of the complexity of cross-border estates. Ordinarily, the involvement of England in this cross-border scenario could not have been predicted, since the deceased had no estate in England. However, the case has echoes of divorce where the disappointed spouse is trying to enforce judgment in a divorce otherwise unconnected with England.

As a rule of thumb, planning helps minimise the risk of this development. It is important to ensure that your worldwide estate is covered by your will (or by multiple wills and related transactions), so that your wishes for the disposition of your estate can (in theory) be followed as closely as possible.

However, even then it is sometimes difficult to guarantee that the disposition of your estate takes effect exactly as you wish, since even in jurisdictions where there is “testamentary freedom” forced heirship regimes can be recognised.


1 In full: Rita Alay Libera Del Curto v Julian Enrique Del Curto and Gloria Del Curto [2023] EWHC 2106 (KB).

2 Most notably, the Foreign Judgments (Reciprocal Enforcement) Act 1933.