Vucicevic & Anor v Aleksic & Ors 2017 HHJ Paul Matthews
Years of practice pass and we store horror stories from our experiences. Tales of incorrect attestation, the dangers of Will forms and all those other urban myths about probate practice…
With that in mind it’s good to have a current case coming through which seems to cover all the major failings (and some more besides) of homemade wills.
Testator
Montenegrin by birth and domiciled in England Wales writing a holographic will.
Estate
Three houses (one in Montenegro) as well cash and investments. A net estate just short of two million pounds.
Problems with the Will
The problems with the will were, essentially, threefold.
The first was capacity and stands as a reminder to obtain medical evidence prior to execution of a will where there is the potential for challenge. Here evidence was obtained by the intending administrators supporting the testator’s capacity and ultimately no support could be found for a lack of the same.
This holographic will was written and witnessed but bore no adequate attestation. As a second issue arising with the will this was answered by an affidavit of due execution that ultimately gave rise to a coherent will without a partial intestacy.
Lastly the larger problem of the three; the language of the Will.
Solutions
An uncertain gift
An uncertain gift to “Brit. Cancer Research”. Research into the testator’s lifetime gifts revealed no connection with any cancer charity. Here an application was made to the Attorney General’s Office for the bequest to be disposed of under the Royal Sign Manual. The resulting order was to divide the legacy between a number of named British cancer research charities.
A legacy for Alex Dubljevic
To “Alex Dubljevic in Cardiff (Barrister)”, and here, the words following, containing the amount, have been obliterated and the figure of “£2.000. Two” added.
A forensic examiner found evidence of a partial entry under the crossed out area which had read “£_000_eigh_”.
No evidence supports the amendments as having being made before execution making this amendment ineffective. In default of that the presumption is that alterations were made after the will was executed: Tristram & Coote’s Probate Practice, [3.231].
Secondly the legatee himself remained in the will, the whole clause or section had not been crossed through; showing that the testator had a continuing intention to benefit him. Applying then the doctrine of dependent relative revocation: Tristram & Coote’s Probate Practice, [3.252].
Revocation of the earlier entry is conditional on the effective substitution of the later entry. The substituted clause fails for lack of execution therefore the original gift stands. The question is what does it read? Expert evidence said either £8000 or £80,000. HHJ Paul Johnson concludes;
“looking at the photographs of the areas of the obliterated entry under infrared lighting, it was possible that there might be an extra zero (for £80,000) but then the word as spelt would need two extra spaces, for a T and a Y. Moreover, £80,000 would be far more than for any other legacy given by the will. Finally, a substituted gift of £2000 would also involve a much larger reduction from the original sum given. On the balance of probabilities, I considered that the obliterated legacy was for £8000 … I simply hold that what is written in the obliterated section is £8000 and that it is valid.”
The gift of the three houses
Who is the devisee?
The gift of the houses is to the Serbian Orthodox Church which could describe more than one organisation; raising the possibility of failure for uncertainty. The various potential bodies were added as defendants and the problem of the potential uncertainty as to which branch of the church was meant was resolved by a deed of variation making a gift of the houses to the Serbian Orthodox Church in London (a registered charity).
Outright gift or trust?
HHJ Johnson used four main points to support the construction of a trust of the gift to the legatee, on trust for people in need, especially children, in Kosovo.
- The statement that “benefit from it to go to Kosovo, for the people in need, especially children” – being a gift for the relief of poverty.
- The second is that “Vladika Amfilohije [Radovic] to be in charge” – the gift being one under the will to oversee the implementation of the gift, rather than a gift to the church.
- The third is the statement “I am having full confidence in Vladika Amfilohije Radovic that is going in right place in Kosovo only. With the consultation and discussion with Serbian patriarch and church authority in Kosovo”. Here HHJ Johnson uses Re Williams [1897] 2 Ch 12, and Comiskey v Bowring-Hanbury [1905] AC 84 to establish the testators intention as creating a trust.
- The fourth is the imposition of a condition that the house in Montenegro be not sold “until 2040.” The significance of the condition here that the gift being made was not intended to be an absolute gift.
The Montenegro house
Expert evidence confirmed that the law of England and Wales could deal with the disposition of the house in Montenegro.
Partial intestacy?
Does the phrase “And all the money” following the gift of the three houses in the will create a partial intestacy?
Here HHJ Johnson again, using various precedents;
“I thought it was clear that the testator meant to use the word “money” in this part of his will to cover the remainder of his estate, and certainly his non-money financial assets. Accordingly, in my judgment there was no partial intestacy in the present case.”
Finally
HHJ Johnson summarises the problems with the will’s language and the root of the solutions;
“his English was by no means perfect. In the handwritten will, the grammar is faulty, words are often misspelt and punctuation misplaced. This complicates the task of ascertaining the testator’s intention, but does not alter it. Bad English can still make a good will, as long as the testator’s meaning can be understood.”
