MUSINGS - Where there is a will…

There is seemingly no end to the literature made available these days for the individual with an interest in the law to read. Now, in addition to the voluminous case law emanating from the numerous courts from the various relevant jurisdictions, there are the free electronic newsfeeds that offer commentary by legal firms on the most recent global developments in all areas of the law.

The subscriber is free to select the areas in which he or she would like to read commentary on recently decided cases. One of these is “Mondaq”, issued every Tuesday and Thursday, and there is also the daily “Lexology”. Of course, it is not practicable for me to keep up faithfully with my daily readings from these two newsletters, so that I am sometimes made aware of a recent development of interest through the medium of a message only from a colleague who might draw it to my attention.

Such an item forms the basis of my musings today and should spark some interest in those who are interested in the law’s treatment of the testamentary dispositions of an individual who has sought to draft his or her own will, as is eminently possible legally. It is taken from a commentary by Ben Kinnear of the firm Hugh James Solicitors on the UK High Court decision in Vucicevic and Bond v Aleksic et al.

The testator in this case was born in Montenegro in 1923 and died in the UK, where he had arrived just after World War II, at age 91 in 2014. He spoke imperfect English and he left a hand-written or “holographic” will. This “will” was undated, save that it bore the year 2012, there was no attestation clause nor did it state who would be the executor, although it did purport that a senior bishop of the Serbian Orthodox Church would be “in charge”, but the Probate Registry declined to accept that he had been thereby appointed executor of the will.

The testator's estate was valued for probate at £2,750,753, although a schedule of assets and liabilities showed a total net estate for probate purposes of £1,863,228.61,
as of 2 September 2016. This included three houses, one in Djenovice (Montenegro), one in Cardiff, and one in London, as well as a number of financial investments such as bonds and shares. The testator died a bachelor, without living issue or parents. He had seven siblings of the whole blood, all of whom lived in Serbia and Montenegro. Five of the siblings predeceased the testator, leaving issue. The sixth sibling is the first defendant.

His lack of proficiency in English was clear from the document which according to the court, contained “poor grammar, misspelt words and incorrect punctuation”. These lapses, however, did not thwart the court in its efforts to ascertain the intention of the testator. As was noted by the judge, “ bad English can still make a good will as long as the testator’s meaning can be understood”.

Even though it was held on the evidence that the testator was mentally competent and therefore of testamentary capacity, the provisions of the will themselves presented additional problems. For instance, there was a legacy of 10, 000 to “Brit. Cancer Research”. As his Lordship pointedly observed, “The problem here is that there is no such organisation”. This issue was eventually resolved by dividing the legacy among a number of British cancer research charities after a fruitless search to ascertain whether the testator had any connection with any one of them.

Second, there was a pecuniary legacy to "Alex Dubljevic in Cardiff (Barrister)", but the difficulty was that words immediately following, containing the amount to be given, had been obliterated. Then, after what was obviously a telephone number, the words "£2.000. Two" appeared.

As for this, an expert opinion was sought from a forensic document examiner who examined the will using special equipment. Her unchallenged evidence, which was accepted by the court, was to the effect that:

"In my opinion, I have recovered conclusive evidence of a partial entry underneath the crossed out area…which has since been obliterated by two different black ballpoint pen inks. The partial entry reads "£_000_Eigh_", where the underscored areas denote unclear characters. Please note that I am unable to determine if the final word reads 'eight' or 'eighty'.I have also examined the text on the remainder… and noted that the final entry "£2.000. TWO" has been written out in a different black ballpoint pen ink to the surrounding entries. Therefore, in my opinion, there is evidence to support the proposition that this entry has been added to the will at a later date."

On this basis, the learned judge, relying on generally accepted authority, reasoned – If the obliterations and additional words could be shown to have been made and written before the will was executed, then there would be a gift in favour of Mr Dubljevic of £2000. But the evidence as to the timing of these changes was equivocal, and therefore they were not proved to have been made before the will was executed. The presumption is that alterations were made after the will was executed: Tristram & Coote’s Probate Practice, [3.231]. The evidence of attestation does not deal with the point. However, I was satisfied that the testator had obliterated the entry with the intention of revoking that entry and had then written the words which he did with the intention of substituting those words for that entry. The revocation by obliteration could be effective as to the entry, since part of a will may be revoked. However, the additional entry in this case would not be effective, since it could not be shown on the balance of probabilities to have been made before the execution of the will and it has not been attested separately.

The unusual feature here was that the legatee himself remained in the will, which showed that the testator had a continuing intention to benefit him. Accordingly, it seemed to me that the doctrine of dependent relative revocation should apply: Tristram & Coote’s Probate Practice, [3.252]. This is that the revocation of the earlier entry is conditional on the effective substitution of the later entry. But the later entry, as I have said, could not be valid. Therefore, the intention to revoke the earlier entry, being conditional but the condition not being satisfied, was not shown. The result was that the earlier obliterated entry remained valid, if its content could be ascertained. The question was what it said.

The expert evidence said that the legacy was either of £8000 or £80 000. In a letter dated 7 March 2017, Mr Dubljevic contended for the latter, though he took no part in the proceedings and did not make any submissions at the hearing. 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 as 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 £2000 would also involve a much larger reduction from the original sum given. On the balance of probabilities, I considered that the obliterated legacy was for £8000.

The limitations of space do not permit me to examine the entire decision today, but the above exemplifies the effort to which a court may go to give effect to a testamentary disposition that was clearly intended by the testator or testatrix to be carried out according to his or her expressed wishes. A short few months ago, the Caribbean Court of Justice sought to ascertain what the local Parliament meant by the word “single” in a relevant statute.

At least that was written in grammatical un-obliterated prose.

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