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Deciphering homemade wills

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Lesley King explains how the High Court interpreted a homemade will handwritten by a testator who wasn’t grammatically fluent in English.

Vucicevic v Aleksic [2017] EWHC 2335 (Ch)

The testator in this case was an elderly Montenegran who had come to the UK shortly after the end of the Second World War. He became a British citizen and was domiciled here. His written English was not good which was unfortunate as he drafted his own will. The estate was nearly £2m and included three houses, one in London, one in Cardiff and one in Montenegro. There was no other will so an intestacy would arise if the will was invalid or failed to deal with all the assets. The deceased was unmarried and had seven siblings, five of whom had predeceased leaving issue.  

The poor judge (His Honour Paul Matthews) had to grapple with a series of issues which reads like an examination question. Here are just a selection.

    1. There was no attestation clause so affidavits of due execution had to be obtained from the witnesses.
    2. Some of the next of kin queried the deceased’s testamentary capacity. Evidence from the GP which ’so far as it went, ran in favour of capacity’. No medical evidence suggesting a lack of testamentary capacity was placed before the court so the judge applied the presumption of capacity.
    3. There was a pecuniary legacy of £10,000 to ’Brit. Cancer Research’ . There is no such charity. There was no evidence that the deceased had links with any particular cancer charity in the UK. The problem of uncertainty was resolved by an application made to the Attorney General’s Office for the bequest to be disposed of by Her Majesty under the Royal Sign Manual. The legacy was divided between a number of named British cancer research charities.
    4. There was a pecuniary legacy to ’Alex Dubljevic in Cardiff (Barrister)’ but the words immediately following, containing the amount to be given, were obliterated. The partial entry read’£_000_Eigh_’, (the underscored areas denoting unclear characters). Then, after what was obviously a telephone number, the words’£2.000. Two’ were written with a different pen. There was no evidence that the alterations were made before execution and the presumption therefore was that they were made after execution. Words added to a will after execution are inadmissible to probate, unless executed. Obliterations take effect as a partial revocation unless the principle of dependant relative revocation applies. The principle is that the testator is presumed to have intended the original wording to be revoked only if the substitution can take effect. The substitution could not take effect. Hence, the earlier obliterated words would be admitted to probate if they could be ascertained. Expert evidence said that the legacy was either of £8000 or £80,000. 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) in the number but the word following 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, the judge considered that the obliterated legacy was for £8000. 
    5. The three houses were left to ’the Serbian Orthodox Church ’. The testator could have been referring to. One, the headquarters of the church itself in Serbia, two, an honorary metropolitanate eparchy in Montenegro, and three, a church in London. The testator was known to the church in London. The potential agreed that the houses should go to the Serbian Orthodox Church in London and executed a deed of variation.
    6. A further problem was the wording of the gift of the houses. It continued:

’Vladika Amfilohije to be in charge. Benefit from it to go to Kosovo, for the people in. Need. Especially children. And all the money. Which is left (after Custom & Inland Revenue) 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 Patrijarch and church authority in Kosovo, with one, condition. House in Djenovice not aloud to sell Till. 2040 . Houses in the UK Britain Vladika is aloud to sell at any time, if he wish.’

Was the gift an absolute gift to the church for its own purposes (which, being a registered charity, will be charitable) or was it a gift to that church on trust for people, especially children, in need in Kosovo?It was necessary to determine the intention of the testator, by reference to the words used, in their context and in all the circumstances. The word ‘trust’  was not essential. The judge decided that the gift was on trust for the following reasons.

  • The prohibition on sale of the Montenegran property showed that the gift being made was not intended to be an absolute gift.
  • Vladika Radovic was the senior bishop of the church. The fact that he was given a role (even though the precise functions and boundaries of that role were unclear) suggested that the gift was not intended to be outright to the church, but that he was to oversee the implementation of the gift.
  • The words ’in full confidence ’ are so-called precatory words. They did not appear to impose an obligation. One decision on similar wording found that they did impose an obligation while a second decision found that they did not. However, there is no principle; it is simply a matter of gathering the intention of the testator from the words used.
  • The statement that ’benefit from it to go to Kosovo, for the people in need, especially children ’ clearly suggested that the testator was imposing an obligation on the bishop to make the right kind of decisions as to what was to be done with the funds. 

7. Finally, how was the reference to ‘money’ to be interpreted? Historically, the strict meaning of ‘money’ in a will was narrow, and confined to money in hand or on deposit. The testator’s estate included financial investments as well as cash deposits. Could they    pass? The judge decided that they could.

  • There is a presumption that a person making a will does not intend to die partially intestate.
  • The gift came at the end of the will. It has the appearance of a residuary gift.
  • The will was handwritten without professional assistance. In the past this has helped the courts expand the meaning of the word.
  • Montenegrin lawyers had given an opinion that in Serbian a common translation of ‘money’ would encompass assets such as shares etc.
  • Moreover, so far as the strict, narrower meaning of ‘money’ is concerned, it was held by the House of Lords in Perrin v Morgan [1943] AC 399 that the word ’money’ used in a will was henceforth to be construed in its context and in the light of all relevant facts.

The judge probably had a very long lie down after grappling his way through such a variety of issues. 

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