Bad English can still make a good Will – the interpretation of homemade Wills

Bad English can still make a good Will – the interpretation of homemade Wills

There is always a risk with homemade Wills that they will either be difficult to determine, potentially create a partial intestacy or be deemed invalid. The recent case of Vucicevic v Aleksic [2017] is an example of how the High Court approached the interpretation of a handwritten homemade Will.

Background

Mr Aleksic (the ''Testator'') was born in Montenegro in 1923. After the Second World War he moved to England and later became a British citizen. He died in October 2014 aged 91 leaving a handwritten Will, disposing of his Estate. His Estate was worth approximately £1.8 m, the majority of which consisted of three properties; two properties in England and one in Montenegro. English was not the Testator's first language and the Will contained poor grammar, punctuation and spelling.

Issues resolved

The following issues were resolved without the involvement of the Court:

  • There was not an attestation Clause in the Will. This was remedied by obtaining an affidavit of due execution from one of the two witnesses to the Will.
  • There was a legacy left to 'Brit. Cancer Research', however as there was no charity with this name and the Testator had no lifetime connection to a cancer charity, an application was made to the Attorney General's office and the legacy was divided between a number of British cancer charities.

Issue determined by the Court

The Testator left a legacy to a friend (a Barrister), but there was difficulty in assessing the value of the legacy as the original wording confirming the amount was obliterated and was followed by a telephone number and the words '£2.000. Two'.  The Personal Representatives of the Estate obtained a report from a forensic document expert which concluded that the obliterated wording was '£_000_Eigh_' and the wording '£2.000.Two' was added after the original Will was made.  As the formalities to alter the original Will were not complied with (a new Will or Codicil), the Judge concluded that the original legacy, determined as being £8000, should stand on the basis that it was never validly revoked.

The most complex issue to be resolved was that the Testator left his three properties to the Serbian Orthodox Church stating:

"Bishop Vladika Amfilohiije Radovic to be in charge. Benefit from it to go to Kosovo, for people in. Need. Especially children. And all the money. Which is left (after Custom & Inland Revenue" [sic].

It was unclear to which church the Testator was referring to but an appropriate church was identified and agreed prior to the Court hearing. 

The Court had to decide whether the church was to benefit outright or whether the legacy should be held on trust. The Court reviewed the wording of the Will and considered that the Testator's intention was to benefit people in need, specifically children in Kosovo and held that the church should hold the money on trust.  

The residue of the Testators Estate included both cash and other investments. The Court had to decide what should happen with the non-monetary assets, which were not referred to in the Will. The Personal Representatives obtained advice from Montenegrin lawyers who advised that the translation of the word 'money' in Montenegrin 'would encompass such assets as shares, unit trust and the like'. The Court therefore concluded that the Testator's other assets would be included in the residuary estate and there was no partial intestacy.

Conclusion

Whilst the Testator's poor English made it more difficult to interpret his intentions, the Court concluded that 'bad English can still make a good will, as long as the testator's meaning can be understood'. This decision highlights that the Court may be willing to adopt a more flexible and practical approach to give effect to a Will in circumstance where the terms are unclear but the intentions of the Testator can be established.

If you would like any advice on Wills please contact Lisa Benham on lisa.benham@michelmores.com or on 01392 687509, who would be happy to help.