The recent High Court case of Vucicevic v Aleksic addresses the problems that can arise with a handwritten will, including the obliteration of a legacy, problems with interpretation, as well as issues of validity, capacity and conflicts of law.
Mr Aleksic (the Deceased) was born in the 1920's in Montenegro and moved to England as a Second World War refugee. When he died in 2014, aged 91, he had built up a fortune of some £2.75 million consisting of three properties, as well as a number of successful financial investments.
The Deceased made his own will in 2012. Despite having lived in the UK for many years the Deceased's English was poor, and many parts of his will gave rise to difficulties. That said, despite the poor grammar, misspelt words and misplaced punctuation, His Honour Judge Matthews was keen to emphasise that 'bad English can still make a good will'. This was despite the fact that the will was signed but only dated '2012' and also did not contain an attestation clause, or provide for the appointment of an executor.
The lack of a date and/or attestation clause does not itself invalidate a will. The attestation clause simply deals with the witnessing of the testator's signature. It states that the will has been signed in the presence of at least two witnesses who then also sign. A presumption of validity is created where a Will contains a valid attestation clause. If there is no attestation clause, extra steps need to be taken to prove that the Will has been validity executed.
In this case, these particular issues were resolved by obtaining an affidavit of due execution from one of the witnesses.
With regards to the absence of a properly appointed executor, the will stated that the Senior Bishop of the Serbian Orthodox Church be appointed to "be in charge". The Probate Registry declined to accept that he had been validly appointed as an executor. This meant that there was a partial intestacy in relation to the appointment of an executor. This issue was resolved by the Deceased's long-standing friend, Mrs Stanka Breben, a practising solicitor, applying for the grant of letters of administration under section 116 of the Senior Courts Act 1981.
- Legacy to "Brit. Cancer Research"
The will left a legacy of £10,000 to "Brit. Cancer Research". There is of course no such organisation. The parties tried to address the uncertainty of who the Deceased intended the gift to go to by making enquiries of various UK cancer charities. However, no charity had any reported connection with him.
This particular issue was therefore resolved by making an application 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.
In order to resolve the remaining issues, an application was made to the court for the interpretation of the will. This is commonly known as a "will construction claim". Notwithstanding the remaining errors within the will, the judge dealing with the case was able to overcome them. He said that the issues "complicate 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."
The issues with the will and how the judge dealt with them
Examples of the issues resolved by the court included:
- Legacy to "Alex Dubljevic in Cardiff (Barrister)"
The will left a legacy to the Deceased's friend, Alex Dubljevic. The words immediately following, containing the amount to be given, had been obliterated and the further words "£2.000. Two" appear.
An expert opinion was sought from a forensic document examiner and she concluded that the obliteration had been made by two different black ballpoint pens. The obliterated text read "£_000_Eigh_" (the underscored areas denotes unclear characters). The expert was unable to determine whether the final word read "eight" or "eighty". She went on to say that the final entry "£2.000. Two" had been written in a different black ballpoint pen to the one used in the surrounding entries and therefore, this suggested that this entry had been added to the will at a later date.
If it could be shown that the amendment to the gift was made before the will was executed, the amendment would be effective and there would be a gift to Mr Dubljevic for £2,000. However, where it is not clear, the presumption is that the amendment was made after the will was executed.
A legacy within a will can be revoked at any time. However, a legacy cannot be amended or a new legacy made unless the new entry has been witnessed in the usual way.
The evidence in this case suggested that the amendment had been made after the will was executed and so it could have meant that the legacy was entirely revoked. However, the judge concluded that the doctrine of "dependant relative revocation" should apply. This is where the revocation is conditional on the substitution being effective. In this case the substituted legacy was not effective, as it appeared to have been made after the will was executed and had not been attested separately, and so the revocation did not take effect and the original legacy would stand.
This left the question however of how much the Deceased intended to originally leave him. As set out above, the expert was not able to determine the original gift. The expert thought that it could have been either eight thousand pounds or eighty thousand pounds. In reaching his conclusion, the judge said "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 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 £2,000 would also involve a much larger reduction from the original sum given. On the balance of probabilities, I consider that the obliterated legacy was for £8,000)."
- The gift of the three houses
The will provided that "All three property. House in Djenovice to Serbian Ortodox Church in Montenegro. And in Cariff. 8, Wordsworth Avenue. CF 24. 3FQ. And in London, 17, Fordwich Road, NW2. 3 TN. All to Serbian Ortodox Church.
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 UK Britain Vladika is aloud to sell at any time, if he wish."
Clearly, this gift raises a number of problems.
1. What is meant by the Serbian Orthodox church?
There are several emanations of the church which the testator could have been referring to. These include the headquarters of the church itself in Serbia, an honorary metropolitanate eparchy in Montenegro, and also a church in London. The testator was known to the church in London so the parties settled this issue prior to the hearing by entering into a deed of variation, confirming that the gift was to go to the Serbian Orthodox Church in London
2. Was the gift to the church to be held on trust?
For a trust to be valid there must be "the three certainties" - namely certainly of 1) intention, 2) subject matter and 3) objects. In order to reach a conclusion on the Deceased's intentions, the judge considered the wording of the will, the context in which it was written and all the circumstances surrounding the case. The judge concluded that in the present case there was no doubt regarding the subject matter and the objects and the only question surrounded the Deceased's intention.
The judge concluded that the Deceased intended the gift to be held on trust, his decision based on the following four significant elements:
- The wording of the clause expressly provides a benefit for the children of Kosovo, rather than the church.
- The reference to Vladika Amfilohije Radovic being “in charge”. The judge considered that there being any apparent role of authority suggested that there was not an intention to provide an outright gift;
- The statement in the clause “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”. While these were certainly not technical words, they are nonetheless suggestive of an obligation on the part of the church to act in accordance with the testator’s wishes;
- The imposition of the condition that the house in Montenegro should not be sold until 2040. The judge considered that because there was such a long lasting obligation was further evidence that there was not an outright gift
- The expression "And all the money. Which is left"
In terms of case law, historically the strict meaning of the term "money" is narrow, and confined to money in hand or on deposit at a bank. If interpreted in this way, there would be a partial intestacy as the Deceased owned other financial investments (which are not "money" in the traditional sense) as well as cash deposits at the time of his death.
However, the position has changed over time and there now exists a presumption that a person who has taken the steps to prepare a will, could not have intended to create a partial intestacy. The judge took the view that, particularly given that the relevant clause features at the very end of the will, the Deceased intended this clause to cover his residuary estate, and therefore the term "money" bears an expanded meaning, so as to cover other kinds of assets. Furthermore, the claimants had obtained advice from Montenegrin lawyers on this point (amongst others), who had concluded that the common translation of ‘money’ in Montenegrin “would encompass such assets as shares, unit trusts and the like”. This, of course, suggests that when the testator used that phrase he had anticipated it encompassing his other financial investments.
This case highlights a number of important issues, not least the lengths the Court will go to uphold a testator's will wherever possible. The case also demonstrates the difficulties personal representatives may face when confronted with a 'problematic will'. Often in such circumstances, the personal representatives have little option but to apply to the Court for a determination on the matter.