Analysis
The claim was a claim dated 5 September 2016 by the claimants as personal representatives of the late Mr Veliko Aleksic (the deceased), who died on 24 October 2014, for construction of parts of the deceased’s last will. He acquired a house in London in 1960 and a house in Cardiff in 1971.
He left a holographic will, which was undated save for bearing the year ‘2012’. It was signed but there was no attestation clause. It did not provide for the appointment of an executor. The deceased’s estate was valued at £2,750,753, including three houses, one in Montenegro, one in Cardiff, and one in London, as well as a number of investments. He died without a spouse, issue or parents. He had seven siblings who lived in Serbia and Montenegro. Five predeceased the testator, leaving issue. The sixth sibling was the first defendant.
There were a number of problematic gifts in the will. The first was a gift of £10,000 to ‘Brit. Cancer Research’, an organisation which did not exist. Second, there was a pecuniary legacy to ‘Alex Dublljevicin Cardiff (Barrister)’ but the words immediately following, containing the amount to be given had been obliterated. Then, after a telephone number, the words ‘£2.000. Two’ appeared.
There were also smaller problems relating to the gift of the three houses in the estate:
‘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. 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 the UK Britain Vladika is aloud to sell at any time, if he wish.’
First, it was not clear what was meant by the Serbian Orthodox Church. Second, nor was it clear whether the gift to the church was for its own benefit or held on trust by the church for the benefit of people in need in Kosovo. Third, the role of Vladika Amfilohije Radofic was unclear. Fourth, it was not clear whether the expression ‘and all the money’ referred also to non-monetary assets in the estate. Fifth, there was a question as to whether the will was effective in making a gift of immoveable property in Montenegro.
Held:
- 1) The problem of uncertainty as to the charitable gift was resolved by an application to the Attorney General’s Officer for the bequest to be disposed of by Her Majesty under the Royal Sign Manual.
- 2) As to the legacy in favour of Alex Dublljevicin, expert evidence showed that the words ‘£2.000. Two’ had been added after the execution of the will, in place of an obliterated legacy of either £8,000 or £80,000. The latter amendment could not be shown to have been made before the execution of the will and it had not been attested separately. Therefore it was ineffective. The earlier obliterated entry remained valid, if its content could be ascertained. Expert evidence established that the obliterated legacy was either £8,000 or £80,000. Given its size, and the size of the substituted gift, the obliterated legacy was for £8,000.
- 3) As to the gift of the three houses, a deed of variation was entered into in 2016 between Serbian Orthodox Church in London, the headquarters of the Serbian Orthodox Church in Serbia, and the personal representatives. This made clear that the gift of the houses was to go to the Serbian Orthodox Church in London. On a construction of the will, the foregoing gift was held on trust by the Serbian Orthodox Church for people in need, especially children, in Kosovo. It was not an absolute gift.
- 4) The condition that the house in Montenegro not be sold until 2040 was governed by the law of Montenegro. However the testator elected for the succession of the property to be governed by habitual residence. In other words, under Montenegrin law there was a referral back (renvoi) to English law. As the gift was not an absolute gift, it was valid.
- 5) There was no partial intestacy of the deceased’s non-monetary assets arising out of the use of the words ‘And all the money’ following the gift of the three houses in the will. The word ‘money’ was used by the testator to cover the remainder of his estate, and therefore his non-money financial assets.
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