Homemade Wills – do they work?
Posted on 9th October 2017
In the recent case of Vucicevic v Aleksic, the High Court has managed to interpret a homemade, handwritten will, made by a testator with poor written English, which had a number of ambiguous clauses. The details of the case almost read like an exam question.
- There was no attestation clause in the will – so it was not clear on the face of it that it had been signed by the testator in the joint presence of two witnesses who signed in his presence.
- There was a legacy to ‘Brit. Cancer Research’ but there is no charity by that name.
- There was a legacy to a named person, but the amount had been obliterated and then after a telephone number, the words ‘£2000. Two’ appeared. Expert opinion was that these words had been added after the will had been signed and witnessed.
- There was a gift of three properties to ‘Serbian Orthodox Church’ – but there are several emanations of the church and so it was not clear who should take this gift.
- After the words in the will giving the three houses to the Church, he added ‘Benefit from it to go to Kosovo, for the people in. Need. Especially children’. So it was not clear whether it was a gift to the church for its own benefit or was to be held in trust by them for the benefit of the people in need in Kosovo, especially the children.
- The will said ‘Vladika Amfilohije to be in charge’. Was this intended to appoint him as executor, administrator of the gift to the church or something else?
- After the gift of the three houses, the will said ‘And all the money. Which is left’. Was this intended to include all the rest of his estate, which included investments and not just money and where was it intended to go? Was it part of the gift to the church or not?
Some of these issues (and others not mentioned above) were resolved by the parties to the case and the remaining issues were eventually resolved by the court to give effect to the testator’s wishes as set out in his will. This case is unusual in its complexity and the number of matters that the court had to consider.
The deceased died in October 2014 and the judgment was given in July 2017, nearly two and half years later. There were eight defendants. An expert opinion was sought from a forensic document examiner in respect of point 3 above to determine whether the obliteration and the words ‘£2000.Two’ were made before or after the will had been signed and witnessed. An application had to be made to the Attorney General’s Office for the legacy to be dealt with under the Royal Sign Manual – a procedure where the charity beneficiary can be identified (point 2 above). A deed of variation was required to deal with the ambiguity over point 4 above and advice was taken from Montenegrin lawyers on a number of issues including the law on property there and the definition of ‘money’ in Serbian.
The costs of dealing with these matters and the delay in distributing will have been significant.
So – while the facts of this case are extremely interesting and the court was able to resolve them in this instance, it may make testators think twice about the value (or otherwise) of a homemade will!
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