Goran Vucicevic and Another v Stanko Aleksic and Others
| Jurisdiction | England & Wales |
| Judge | HHJ Paul Matthews |
| Judgment Date | 20 September 2017 |
| Neutral Citation | [2017] EWHC 2335 (Ch) |
| Docket Number | Case No: C31BS010 |
| Court | Chancery Division |
| Date | 20 September 2017 |
[2017] EWHC 2335 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: C31BS010
Robert Sheridan (instructed by Alletsons) for the Claimants
Julia Beer (instructed by Direct Access) for the Fifth Defendant
The remaining defendants did not attend and were not represented
Hearing dates: 24 July 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HHJ Paul Matthews (SITTING AS A JUDGE OF THE HIGH COURT)
Introductory
On 24 July 2017, I heard this Part 8 claim. I announced my decision immediately afterwards, but stated that I would put my reasons in writing. These are those reasons, with one small emendation of my decision as announced. I am sorry for the delay in producing these reasons, caused by pressure of other work (including that arising because of the retirement of the mercantile judge without immediate replacement) and also by the flood in the Bristol Civil and Family Justice Centre in July.
The claim is made by claim form issued on 5 September 2016 by the claimants as personal representatives of the late Mr Veljko Aleksic. It seeks rulings on the construction of parts of the will that have given rise to difficulty, and directions to the claimants in the administration, in particular for the distribution of the estate on the footing that the will was validly executed. It is supported by witness statements of the Second Claimant dated, 2 September 2016, Stanka Breben dated 10 December 2016, and the First Claimant dated 9 February 2017, and an affidavit of Roger Crowley dated 23 November 2016.
Mr Veljko Aleksic (whom I shall call hereafter "the testator") was born in Montenegro on 19 March 1923, but died on 24 October 2014 domiciled in England and Wales, aged 91 years. He arrived in England shortly after the Second World War, and worked in a quarry. He became a British citizen. By 1952 he had established himself in Wales. He acquired a house in London in 1960, and a house in Cardiff in 1971. He also purchased land in Djenovice in Montenegro with two of his brothers. They built three houses on it, two of which were semi-detached.
When the testator died he left a holographic will, which is undated save for bearing the year "2012". It was signed, but there was no attestation clause. One of the two attesting witnesses accordingly made an affidavit of due execution, such execution having taken place towards the end of 2012. However, it did not provide, at any rate expressly, for the appointment of an executor. The second defendant, a senior bishop of the Serbian Orthodox Church, is however appointed by the will "to be in charge". I return to the meaning of this later, but the Probate Registry declined to accept that he had been thereby appointed executor of the will. There is no evidence of a previous will, so if for any reason (or to any extent) this will were not effective, there would be an intestacy.
The testator's estate was valued for probate at £2,750,753, although a schedule of assets and liabilities shows 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.
A long-standing friend of the testator, Mrs Stanka Breben, and the second claimant, a practising solicitor, decided to apply for a grant of letters of administration under section 116 of the Senior Courts Act 1981. The order under section 116 was made by District Registrar Herdsman on 13 November 2015. Mrs Breben subsequently instructed the second claimant and the first claimant (a chartered legal executive with the same firm of solicitors, and a native Serbian speaker) to apply for a grant ad colligenda bona. This was obtained on 11 July 2016.
Problems with the will, in summary
A number of problems arose in relation to the will. Some were since resolved. Some however remained outstanding and were for me to deal with. One question related to due execution. This was resolved, as I have said, by obtaining an affidavit of due execution from an attesting witness.
Another question related to the testator's capacity to make a will. The first claimant corresponded with the next of kin of the testator, some of whom seemed to be of the view that he lacked capacity. This was dealt with by obtaining a report from his general medical practitioner, Dr Joseph Pearson. This was submitted to HHJ McCahill QC in February 2017, who directed that further questions be submitted to the medical practitioner. A further response by the doctor was considered by me. I considered that the court now had medical evidence relating to the testator's mental capacity in late 2012 which, so far as it went, ran in favour of capacity. On the other side, there was no medical evidence suggesting a lack of testamentary capacity.
I therefore indicated that, in my opinion, unless significant and particularised evidence of a lack of testamentary capacity was put before the court, it was very likely that the court would reach the conclusion that the deceased indeed possessed such capacity in the present case. I left it open to the next of kin to obtain and adduce any evidence of lack of capacity that they wished. None was forthcoming. Nor even were any submissions or other communications from the next of kin. Accordingly, there was nothing to rebut the presumption that, where a will was rational on the face of it and was shown to have been duly executed, the testator was mentally competent, and accordingly I held that he had testamentary capacity at the time he made this will.
Other problems related to the terms of the will itself. Although the testator had lived for many years in this country, his English was by no means perfect. In the handwritten will, the grammar is faulty, words are often misspelt and punctuation misplaced. This complicates the task of ascertaining the testator's intention, but does not alter it. Bad English can still make a good will, as long as the testator's meaning can be understood. Despite the difficulties, most of what the will provides is clear. There are first of all pecuniary legacies to his nephews and nieces, and to other individuals, as well as to the Serbian Church in Djenovice. These cause no particular problems.
Then there are a number of problematic gifts. The first is a pecuniary legacy of £10,000 to "Brit. Cancer Research". The problem here is that there is no such organisation. Second, there is a pecuniary legacy to "Alex Dubljevic in Cardiff (Barrister)", but the difficulty is that words immediately following, containing the amount to be given, have been obliterated. Then, after what is obviously a telephone number, the words "£2.000. Two" appear.
Those are the smaller problems. There is next the gift of the three houses in the estate, as follows:
"All three property. House in Djenovice to Serbian Ortodox Church in Montenegro. And in Cardiff. 8, Wordsworth Avenue. CF 24. 3FQ. And in London, 17, Fordwich Road, NW2. 3 TN. All to Serbian Ortodox Church.
Vladika Amfilohije to be in charge. Benefit from it to go to Kosovo, for the people in. Need. Especially children.
And all the money. Which is left (after Custom & Inland Revenue)
I am having full confidence in Vladika Amfilohije Radovic that is going in right place in Kosovo only. With the consultation and discussion. With Serbian Patrijarch and church authority in Kosovo, with one, condition. House in Djenovice not aloud to sell Till. 2040. Houses in the UK Britain Vladika is aloud to sell at any time, if he wish."
This gift raises a number of problems. The first is what is meant by the Serbian Orthodox Church. The second is whether the gift to the church is for its own benefit (but of course within the ambit of the church's own purposes) or is held on trust by the church for the benefit of people in need in Kosovo, and especially children. The third is the role of Vladika Amfilohije Radovic in the administration of this gift. The fourth is whether the expression "and all the money" refers also to other non-monetary assets in the estate other than the three houses. The fifth problem is whether the will is effective in making a gift of the immovable property in Montenegro, but if so what law regulates that gift, and then whether the limitation on selling it is effective or not.
Finally, the testator has signed his name and printed it underneath. His two attesting witnesses have done likewise. But there is no attestation clause. This led to the Probate Registry's requiring an affidavit of due execution, as already mentioned. So that is now dealt with.
The legacy for cancer research
I return to the difficulties in the will itself. The problem with the uncertain legacy to "Brit. Cancer Research" was originally addressed by making enquiries of various cancer charities in the UK to find out if the testator had some...
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