Contentious probate solicitor, Chris Green, reviews an important legal decision on how to interpret a badly worded Will.
A recent case, Vucicevic v Aleksic (2017), has highlighted the value and potential scope of making a Claim to Court for the terms of a Will to be construed, as well as warning against the difficulties that can be caused if the terms of a Will are uncertain or if a Will has not been properly prepared.
The Testator in that case, Veljko Aleksic, was originally from the Balkans and moved to England shortly after the Second World War. Whilst he lived in England for decades, he never mastered the language. However, he built up a substantial Estate, which was valued at almost £2million at his death. It consisted of houses in London and Cardiff, together with land interests in Montenegro.
A very badly worded Will
Some years before his death in October 2014, Veljko created a home-made, handwritten Will. There were a number of issues with the Will, largely due to the language difficulties (words were misspelt and punctuation misplaced) and also because it hadn’t been professionally drafted.
Those issues included:
(i) it didn’t clearly name who was to act as the Executor and administer the Estate,
(ii) it was signed and witnessed, but there was no date and no attestation clause,
(iii) it was not clear what legacies were to be left, or to whom, and
(iv) it was not entirely clear who was to receive the Residuary Estate.
It was possible to remedy some of those issues. The lack of a date doesn’t, for instance, invalidate a Will. Obtaining an affidavit from one of the two witnesses confirming when and how the Will had been executed was sufficient to clear that point up, as well as the missing attestation clause. Further, in the absence of a properly identified and appointed Executor, a long-standing friend of Veljko (Mrs Breben) and a Solicitor were able to apply for an Order permitting them to obtain a Grant of Letters of Administration under s.116 of the Senior Courts Act 1981.
Court interprets the badly worded Will
The remaining issues were eventually resolved when the Personal Representatives sought the guidance of the Court by way of what is known as ‘construction’. This process effectively asks the Court to interpret what a Will says and in doing so, it can consider extrinsic documents and evidence, with the intention of trying to establish the Testator’s true intentions.
In this case, the Judge took a pragmatic approach. He said that whilst Veljko’s poor English complicated the task of ascertaining his intention, it did not alter his intentions. The particular phrase used was “Bad English can still make a good will, as long as the testator’s meaning can be understood”.
By relying on extrinsic evidence, consulting extensive legal literature on irregular Wills, as well as considering the laws of Montenegro, the Judge was able to determine how the Estate should be distributed.
Examples of the issues resolved by the court included:
(i) a legacy of £10,000 being left to “Brit. Cancer Research” despite no such organisation existing,
(ii) a gift of property in Montenegro to the “Serbian Ortodox Church” without specifying which organisation this is referring to and it not being clear if a Will made in England can deal with Property situated in Montenegro.
Problems associated with home-made Wills
The problem of how to interpret a badly worded Will most frequently occurs where the Will is home-made, without the involvement of a qualified solicitor. The fee for having a Will professionally prepared is generally a price well worth paying, especially when considered in the light of the legal costs that can be incurred when the terms of a Will are uncertain and a dispute arises.
How we can help
If you are involved in or dealing with an Estate where there is a Will which is in any way unclear, or there is a dispute about how to interpret a badly worded Will, then please contact our Contentious Probate Team on 01271 349960. We specialise in handling disputes relating to Wills and probate, including challenges to the validity of a Will and contesting Claims for the Court to construe the terms of a Will.