The recent High Court case of Vucicevic and Bond v Aleksic & Ors raises some interesting and novel points on the interpretation of wills. The full case can be found here.
Background
Veljko Aleksic (the testator) was born in Montenegro in 1923. He arrived in the UK shortly after the Second World War and later became a British citizen. He died in October 2014 aged 91.
The testator left a holographic (handwritten) will, which was undated, save bearing the year ‘2012’. There were a number of issues from with the formalities, including that the will did not contain an attestation clause, nor did it dictate who would be the executor (it stated that the second defendant, a senior bishop of the Serbian Orthodox Church, would be “in charge”, which the Probate Registry had previously decided did not amount to the valid appointment of an executor).
The testator’s net estate was worth around £1.8m. These included three properties, one each in Montenegro, Cardiff, and London.
The issues in the will, and the judge’s decision
Though he had lived in the UK for the majority of his adult life, the testator spoke imperfect English. The will contains poor grammar, and words are often misspelt and punctuation applied incorrectly. This being said, and as the judge rightly pointed out: “bad English can still make a good will, as long as the testator’s meaning can be understood”.
The specific issues with the will are as follows:
Issue 1 – legacy to “Brit. Cancer Research”
The will leaves a legacy of £10,000 to “Brit. Cancer Research”.
The problem, of course, is that there is no such organisation.
Prior to the case the parties wrote to various UK cancer charities to determine whether the testator had any lifetime connection with them. Unfortunately, he did not, though he had suffered from bladder cancer in 2012.
Prior to the hearing an application had been made to the Attorney General’s Office. The application, which was signed by the Solicitor General on behalf of the Attorney General, dividing the legacy between a number of named British cancer research charities. As such the judge did not need to address the issue any further.
Issue 2 – Legacy to “Alex Dubljevic in Cardiff (Barrister)”
A legacy was left to “Alex Dubljevic in Cardiff (Barrister)”, who was a friend of the testator.
Here the problem is that the words immediately after (i.e. containing the amount of the legacy) had been “obliterated” (to use the judge’s wording) and instead what follows is a telephone number, followed by the words “£2,000. Two”.
The personal representatives had sought an expert opinion from a forensic document examiner about the obliteration and the further words “£2.000. Two”
In the report the expert concluded that the obliteration had been made by two different black ballpoint pens. The obliterated text reads “£_000_Eigh_” (the underscore denotes unclear characters). The expert was not able to determine if the final word read ‘eight’ or ‘eighty’. Furthermore, the entry of “£2.000. Two” was written in a different black ballpoint pen used to obliterate the other text, and there was evidence to support the proposition that entry had been added to the will at a later date.
If the changes to the will can be shown to have taken place before the will was executed then they would be effective. However, where the timings of alterations to a will are not known there is a presumption that they were made after the will was executed. Here, there was no evidence that the changes were made before the will was executed, and indeed the expert forensic document examiner suggested that they might have been made after the will was executed.
A legacy within a will can be revoked at any time. However, a new legacy cannot be made after a will has been executed unless the relevant text satisfies the criteria of a will / codicil (e.g. witnessed by two witnesses).
Accordingly, one may have expected that the revocation of the original legacy was effective (given the testator’s apparently clear intention to revoke it) but that the replacement legacy (i.e. of £2,000) would be ineffective. On that basis Mr Dubljevic may not have received anything from the estate.
However, the judge concluded that the doctrine of ‘dependant relative revocation’ should apply. This is where the revocation of a legacy is conditional on the effective substitution of another. In this case, as the substituted legacy could not be effective (because it was apparently made after the will was executed), the condition on which the purported revocation was based did not take effect, and therefore the original legacy would stand. Mr Dubljevic would therefore receive the original legacy.
The next question was how much the testator had originally left him. As discussed above, the expert concluded that the obliterated text read “£_000_Eigh_”. They were not able to determine whether this was eight or eighty thousand pounds. The judge concluded that while it was possible that there was an extra zero, the words “Eigh_” as spelt would need two extra spaces to become eighty, whereas the expert considered that there was only one. Furthermore, a gift of £80,000 would have been by far the largest cash legacy provided in the will. It was also relevant that the sum which the testator had sought to substitute it with, £2,000, was far closer to £8,000 than £80,000. For these reasons the judge considered that it was more likely that the originally intended legacy was £8,000 rather than £80,000, and it is that which he was to receive.
Issue 3 – the residue clause?
The next gift states as follows:
“All three property. House in Djenovice to Serbian Ortodox Church in Montenegro. And in Cardiff. 8 Wordsworth Avenue. CF 24. 3FQ. And in London, 17 , Fordwich Road, NW2. 3TN. 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”
The issues are discussed below:
What is meant by the Serbian Orthodox church?
The problem is that there are several emanations to which the testator could have been referring. This issue had in fact been settled by the parties prior to the hearing.
Was the gift to the church for its own benefit, or for them to hold on trust?
For a trust to be valid there must be ‘the three certainties’, namely certainty of (1) intention, subject matter, and (3) objects. Unless all three exist there cannot be a trust.
Counsel for each side had referred the judge to various authorities, however the principle throughout them was consistent, namely that these are not really questions of law, and instead the overarching issue is to determine what the testator intended. In order to consider the testator’s intention the judge was able to consider the wording of the will, the context in which it was written, and the circumstances of the case.
The judge considered that there were four significant elements in reaching his decision, namely:
- The wording of the clause expressly provides a benefit for the children of Kosovo, rather than the church. Although any gift to a charity can only be used for a charitable purpose, the point is that the provision given by the testator was far more narrow than for a general charitable purpose to which the church may otherwise use the funds;
- 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 Radovicthat 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; and
- The imposition of the condition that the house in Montenegro should not be sold until 2040. The judge considered that there was such a long lasting obligation was further evidence that there was not an outright gift.
The judge considered all the relevant factors, and concluded, on balance, that in the circumstances that the gift did not bear the hallmarks of an outright gift, and, accordingly, the church was to hold the sums on trust for people in need, especially children in Kosovo.
Issue 4 – was there a partial intestacy?
The problem arose because of the use of the phrase “And all the money. Which is left”. What, therefore, was to be become of non-monetary assets, other than those specifically discussed in the will? The testator did in fact own financial investments, which are not ‘money’ in the traditional sense.
In terms of case law, traditionally the phrase ‘money’ was interpreted rather strictly. However, the position has subtly changed over time, and there now exists a presumption that a testator who prepares a will does not intend to create a partial intestacy. It was also relevant that the phrase “And all the money. Which is left” features at the very end of the will, and therefore were it not for the erroneous use of the phrase ‘money’ would otherwise look like a residuary clause. 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.
For the reasons above, the judge concluded that the phrase should be interpreted as a residuary clause, and as such no intestacy applied.
Conclusion
The case provides a fascinating example of the difficulties personal representatives can face when interpreting wills, especially ones which are homemade. The case also provides a neat illustration of the new, more flexible approach the courts are willing to adopt in the light of the judgement of Marley v Rawlings and another [2014] UKSC
