A Comedy of Errors, But Still a Valid Will
Kevin Lynch, Partner in the Contentious Probate Department at The Wilkes Partnership, comments on the issues that the Court was asked to consider and how the Court arrived at its decision in respect of the case of Vucicevic & Another v Aleksic & Others.
The case of Vucicevic & Another v Aleksic & Others [2017] EWHC 2335 (Ch), handed down on 20 September 2017, makes for some very interesting reading due to the interpretation of the last known Will of the Deceased.
Mr Veljko Aleksic was born in Montenegro but lived in the UK for the majority of his adult life. By the time of his death on 24 October 2014, his gross estate was valued at £2,750,753 comprising properties in Wales, England and Montenegro as well as a number of financial investments. He died a bachelor and without any children.
He left a Will bearing the year “2012” that seems to have been prepared by Mr Aleksic himself. The Court was asked to decide on various issues about what Mr Aleksic wanted and how his Will should be interpreted.
Kevin Lynch continues “Although Mr Aleksic had lived in the UK for the majority of his life, his written English was imperfect. As a result, some of the clauses contained in his Will were ambiguous and/or vague. In addition, some manuscript amendments had been made to the Will. The Court was asked to decide the meaning of these clauses. In coming to its conclusion, the Court relied on expert evidence and wider background information.”
Specific legacy
The Will referred to a gift of money to a friend of the deceased’s. The words appearing after his name, including the amount of the legacy, were obliterated. A telephone number then appeared and then “£2,000. Two.” A forensic document examiner examined the clause relating to the gift. She concluded that the entry “£2,000. Two” was written in ballpoint pen at a later date to the rest of the Will. The judge accepted that, on the balance of probabilities, the amendment was made after the execution of the Will and so was not effective.
The judge concluded that the earlier, obliterated entry remained valid but, as it was obliterated, the judge needed to decide the amount of the earlier gift. The expert evidence said it was either £8,000 or £80,000. The recipient of the gift was contending for the latter. There was also uncertainty as to whether the gift was in euros or pounds sterling. The judge decided, on a consideration of the value of the other pecuniary legacies and the amount of the amended gift, that it was more likely than not to be £8,000 rather than £80,000.
Kevin comments “It is important that if individuals want to change the value of a gift after they have signed their Will, they obtain legal advice before doing so to ensure that the change is valid and takes effect. In some cases, this could be done by a Codicil. There could also be other implications, for example issues relating to tax when changing a gift that individuals should be aware of prior to making their decision.”
Property gift
The Will contained the following clause:-
“All three property. House in Djenovice to Serbian Ortodox [sic] Church in Montenegro. And in Cardiff. 8 Wordsworth Evanue. CF24. 3FQ. And in London, 17 Fordwich Road, NW2 3 TN. All to Serbian Ortodox (sic) 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.
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 [sic] to sell Till. 2040. Houses in the UK Britain Vladika is aloud to sell at any time, if he wish.”
This clause raised various problems. The first was what was actually meant by the Serbian Orthodox Church as there are several emanations that could be referred to. This issue was concluded between the various emanations themselves and it was agreed that the gift was to go to the Serbian Orthodox Church in London which is a registered charity.
The Court then needed to decide whether the gift was to the Church itself absolutely or to the Church as a trustee for the benefit of others. The judge decided that the Will created a trust of the gift so that it was to benefit people in need, particularly children, in Kosovo. The judge arrived at this decision by closely looking at the intention of the testator. The judge felt it was clear that it was not an absolute gift because it referred to the benefit going elsewhere, sought to appoint a trustee and directed that the house in Montenegro needed to be retained until 2040.
The clause raised another issue in that it also referred to “all the money”. The question was whether this wording was sufficiently wide to include financial investments and cash deposits or whether it was confined to money in hand or on deposit at the bank. If it was held to be a narrow interpretation, there would have been a partial intestacy and the financial investments and cash deposits would have passed in accordance with the Rules of Intestacy.
If a wide interpretation, they would pass to the Church for the benefit of the Kosovan people. As this clause was close to the end of the Will and the testator specifically said “what is left”, the judge decided in favour of the wider interpretation as he felt the testator intended to make a residuary gift.
Kevin comments “These issues with drafting show again the absolute importance of testators obtaining legal advice when they prepare their Will to avoid this uncertainty. Legal advisers can ensure that the Will that is created documents exactly what the testator intended. There was a real risk with this case that the interpretation could have been that the “money left” provision was held to only refer to cash in hand or on deposit at the bank meaning that everything else passed in accordance with the Rules of Intestacy. That does not appear to have been what Mr Aleksic wanted with his reference to benefitting people in Kosovo. The Court had to decide on the interpretation on the balance of probabilities having carefully considered the evidence. Even though in this case, the Court felt that there was sufficient information to be able to decide Mr Aleksic’s intention in favour of the charitable intention, it is likely that a significant amount of money was spent in legal fees in obtaining this declaration.
It would have been far more certain and cost effective for fees to have been incurred in Mr Aleksic’s lifetime to set up a properly formulated trust.”
Gift to charity
It was not only the Court that became involved in resolving issues about the Will. The Will left £10,000 to “Brit. Cancer Research”. There are no registered charities in the UK with this name. To resolve this uncertainty, the Solicitor General, on behalf of the Attorney General, divided the legacy between a number of named British cancer charities.
Kevin advises “It is absolutely crucial that when drafting Wills, draftsman or the testators themselves ensure that the beneficiary is clearly defined. If it is intended to benefit a charity, it is always good practice to check the Charities Commission website and refer to the charity number in the Will so that even if the charity alters its name, the gift remains valid due to the inclusion of the charity number”.
This case aptly shows the minefield that can be Will drafting. In many ways, there is no such thing as a simple Will because everyone’s intention, background and family tree is different. Significant problems can arise if careful consideration is not given to the drafting which can result in large amounts of money being spent, risks a finding or a settlement that does not accord with the testator’s intention not to mention a significant delay in the estate being administered.
The Contentious Probate Team at The Wilkes Partnership advises executors and beneficiaries faced with an uncertain or ambiguous Will. If you wish to discuss any aspect of Will drafting or interpretation issues please get in touch with Kevin Lynch on 0121 233 4333 or via email on [email protected].