Even The Sweetest Things Can Cause A Mess When They Melt

Even the sweetest things can cause a mess when they melt, as seen in the High Court case of an ice cream tycoon’s broken promises.

Russells’ head of Private Wealth Karl Dembicki shares his views on the legal battle between the ex wife and new wife of ice cream tycoon Ernesto “Ernie” Colicci .

I always enjoyed going as a family to the annual Ice Cream Alliance, an exhibition and competition for #icecream merchants. My Nonno, Cav. Giovanni Rosso had vans along The Backs in #cambridge.

The Colicci family always attended the ICA. Ernesto and his former wife, Josephine, established a successful ice cream business with vans across #london. They had two adult children, Roberto and Rosanna. The marriage failed, leading to a #divorce in 2011 after agreeing on a clean-break settlement and executing their first shareholders’ agreement.

Ernesto then married Nora Grinberg and, in 2016, was advised to sign a Deed with Josephine, covenanting that any shares they still held in the ice cream business at death would pass to their children. They undertook to write #wills reflecting the Deed.

Ernesto should have told Nora about the Deed. Instead, he made a Will in 2017, leaving his shares in the ice cream business to her. Shortly after, he signed a new shareholders’ agreement gifting some shares to his children and appointing Roberto as a director. Ernesto kept this agreement from Nora.

Ernesto died suddenly aged 66 during the pandemic. His ex-wife and children challenged Ernesto’s 2017 Will leaving his shares to Nora. They asserted that the 2016 Deed signed by Ernesto and Josephine should be enforced, giving the ice cream business to Roberto and Rosanna.

Nora argued that the 2016 Deed was revoked when Ernesto and his children signed a new shareholders’ agreement in 2017. The Colicci family rebutted this, saying the 2017 agreement left the 2016 Deed in place or in the alternative that the 2017 agreement should be rectified to that end. Nora would not concede the claim for rectification, so the case came before the High Court.

The High Court upheld that the 2016 Deed was, in fact, a binding obligation on Ernesto and Josephine, which prevented Ernesto from disposing of his shares upon death. The 2016 Deed should be viewed as a mutual promise that any shares held by the parties would pass to their children, with a commitment to make Wills to that effect. The judge said, ‘It created testamentary obligations which removed Ernesto’s and Josephine’s testamentary freedom to dispose of their shares on death.’ He also denied Nora’s defence that the second shareholders’ agreement entered in 2017 superseded the 2016 Deed.

The result was that his children, rather than Nora inherited Ernesto’s £4.7m share of the ice cream business.

The case highlights two things. The importance of families talking to their loved ones about the provisions in their Wills and bringing to your #lawyer all the relevant documents associated with your #business to determine any restrictions upon testamentary disposal.

Picture my grandfather, Giovanni, with his ice cream van. He still drove it at 104!

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