Court upholds homemade, poorly written, will
This month saw the court take a very pragmatic approach in relation to the interpretation of a homemade will. Mr Aleksic died at the age of 91 and he left a homemade will which he had entirely handwritten. Originally from Montenegro, Mr Aleksic had lived in England for decades but had a poor grasp of written English. Within his will the grammar was faulty, words were misspelt and punctuations misplaced. However bad English does not invalidate a will provided the meaning can be understood.
Mr Aleksic’s will was undated (save for bearing the year 2012) and, although signed by him and two witnesses, there was no attestation clause (a clause stating that the document had been executed in the presence of one or more witnesses). The issue with the lack of attestation clause was however dealt with by one of the witnesses signing an affidavit to confirm that the procedural requirements needed to make a valid will had been adhered to.
The Judge in this instance decided that despite the issues with the will, the provisions in the will were relatively clear; save for some problematic gifts. The first was that £10,000 had been gifted to “Brit Cancer Research” which does not exist. This was dealt with by a special application to the Attorney General’s office which allowed the gift to be divided between various cancer charities.
There was a second gift to a barrister, Mr Dubljeviv in Cardiff, but the amount to be given was deleted and replaced with (what appeared to be) a telephone number and the words “£2.000 Two”. Expert evidence was secured to try and determine when the amendments were made. It appeared that that testator had originally inserted the amount £8,000 and the amendments were made after the will had been signed and witnessed. This was therefore not a valid amendment. On this basis the Judge held that the gift of £8,000 was to be given to Mr Dubljeviv.
The biggest issue was that the will detailed that most of his estate (three properties) was to be gifted to the “Serbian Orthodox Church” and that a Mr Radovic was to “be in charge”. The wording of this raised a number of issues. Firstly it was unclear what was meant by “Serbian Orthodox Church”, and secondly, whether the gift was to be used for the church’s own benefit or to be held on trust for the people of Kosovo (especially children in need). In addition, the Judge had to determine what role Mr Radovic had in relation to administering the gift.
The various possible beneficiaries agreed to enter into a deed of variation, amending Mr Aleksic’s will so that the gift was to be given to the Serbian Orthodox Church in London. The judge then had to address whether the gift of the three properties was absolute or to be held on trust. He had to ask himself whether it was intended by Mr Aleksic to give (rather than, say, lend) these assets and to be sure of the individual who was to receive them. The last two questions could be answered easily and so the judge had only to decide whether Mr Aleksic had intended for the properties to be gifted under a trust only. The judge determined that the properties were to be held on trust because Mr Aleksic had left quite specific conditions relating to the gift, including that Mr Radovic was to be in charge, and the benefit of the gift was for the people of Kosovo and not the church itself.
This case raised numerous complex issues relating to the construction and interpretation of Mr Aleksic’s will. It clearly highlights the importance of taking legal advice when making a will to ensure that intentions are properly recorded and that there can be no dispute later on. However, this case also demonstrates that the court will take a pragmatic approach when trying to interpret wills which are not clear. They will, wherever possible, try and uphold a person’s will as valid even if directions need to be given in relation to its interpretation.
To avoid your loved ones having to go through this level of uncertainty and stress, a clear and valid will is essential. Contact our specialist wills, trusts and probate team on 01752 203500.
Alternatively, if you have any concerns relating to the validity of a will, or need advice about its interpretation, please contact GA’s team of inheritance dispute experts by calling 01752 203500 or by emailing me via anna.wonnacott@GAsolicitors.com.
Anna Wonnacott, solicitor
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