Vucicevic & Anor v Aleksic & Ors [2017] EWHC 2335 (Ch)

[2017] EWHC 2335 (Ch)Case No C31BS010
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue BRISTOL DISTRICT REGISTRY, Bristol Civil Justice Centre, 2 Redcliff Street, Bristol, BS1 6GRDate 20/09/2017
Before
HHJ PAUL MATTHEWS(sitting as a Judge of the High Court)
Between
Goran VucicevicClaimantsStephen Anthony Richards BondClaimantStanko AleksicDefendantsVladika AmilofijeDefendantThe Serbian Orthodox Church (Montenegro Branch)DefendantThe Serbian Orthodox Church (Head Office in Serbia)DefendantThe Serbian Orthodox Church Sveti Sava (London)DefendantVladan AleksicDefendantThe Attorney GeneralDefendantAlex DubljevicDefendant
Robert Sheridan (instructed by Alletsons) for ClaimantsJulia Beer (instructed by Direct Access) for Fifth Defendant for The remaining defendants did not attend and were not representedHearing Hearing dates: 24 July 2017
Approved JudgmentI 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)

HHJ Paul Matthews :

[1]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.[2]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.[3]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.[4]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.[5]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.[6]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

[7]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.[8]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.[9]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.[10]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.[11]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.[12]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.”

And all the money. Which is left (after Custom & Inland Revenue)

[13]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.[14]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

[15]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 connection with any of them or had made donations to them. It is apposite to note that he had himself suffered from bladder cancer earlier in 2012, which was dealt with, apparently successfully, by radical radiotherapy. The result of the research carried out was however negative. No cancer charity had any reported connection with him. The problem of uncertainty has therefore been resolved recently by an application made to the Attorney General’s Office for the bequest to be disposed of by Her Majesty under the Royal Sign Manual. This was signed by the Solicitor General on behalf of the Attorney General on 20 June 2017, dividing the legacy between a number of named British cancer research charities. This part of the matter is therefore now resolved, and I need say no more about it.

The legacy for Alex Dubljevic

[16]As for the gift to Alex Dubljevic, he was a friend of the testator for many years, although of a younger generation. He also appears to have acted as his interpreter in relation to certain matters, such as when he visited the specialist doctors concerning his cancer treatment. Mr Dubljevic was joined as Eighth Defendant. The administrators sought an expert opinion from a forensic document examiner, Kate Strzelczyk, about the obliteration and the further words “£2.000. Two”.[17]In her report, she explains how she examined the document using special equipment. She concluded:
“In my opinion, I have recovered conclusive evidence of a partial entry underneath the crossed out area on line 3 of page 2 of the will in item 1 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 of line 3 of page 2 of the will in item 1, 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.”
This evidence was not challenged, and I accepted it.[18]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.[19]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.[20]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.[21]At the hearing, looking at the photographs, I said that I thought the gift was in euros rather than pounds sterling. Counsel appeared to agree with me. But the expert in her report thought that the gift was one in pounds sterling, and so I have looked again at the photographs and the report. What I had thought was a euro sign could also be a pound sign. The only other gift in the will to a UK recipient (“Brit. Cancer Research”) is expressed in pounds. I consider overall that the gift should be one in pounds rather than euros. In the current state of the exchange markets, it makes hardly any difference anyway. Accordingly, if probate had not yet been granted of the will, it could have been granted in the form that it is, supplemented by the infrared photographs of the obliterated section, as in Re Itter’s Goods [1950] P 130. In the circumstances, however, I simply hold that what is written in the obliterated section is £8000, and that it is valid. The gift of the three houses Who is the devisee?

The gift of the three houses

[22]There is an unfortunate ambiguity in the gift of the houses to the Serbian Orthodox Church. This is because there are several emanations of the church which the testator could have been referring to. These include the headquarters of the church itself in Serbia, an honorary metropolitanate eparchy in Montenegro, and also a church in London. Vladika Amfilohije Radovic is the metropolitan (senior bishop) for Montenegro. But the testator was known to the church in London. This is why the third, fourth and fifth defendants have been joined. In fact the problem of the potential uncertainty as to which branch of the church was meant was resolved by a deed of variation being entered into, dated 19 October 2016. This was entered into between the representative of the Serbian Orthodox Church in London, the headquarters of the Serbian Orthodox Church in Serbia, and the claimants. It agreed to substitute a new will for that of the testator. This made clear that the gift of the houses was to go to the Serbian Orthodox Church in London (which is a registered charity).

Absolute gift or trust?

[23]This raises the further question whether the gift of the three houses to the Serbian Orthodox Church in London is an absolute gift to that church for its own purposes (which, being a registered charity, will be charitable) or is a gift to that church on trust. The Fifth Defendant said the former; the claimants put forward arguments for the latter. I have already set out the terms of the gift. It is well known that, in order to create a trust, the so-called “three certainties” rule must be satisfied: see eg Lewin on Trusts, 19th ed, [4-003] ff. This means that there must be(i) certainty of intention, that is, that the testator intended to create a trust rather than some other legal arrangement,(ii) certainty of subject matter, that is that the property subject to the trust can be ascertained, and(iii) certainty of objects, that is, that the beneficiaries or purposes of the trust are clear. As I have said on at least one other occasion, this is not a rule of trust law alone. It is just as true of any gift under ordinary property law. For a gift to be valid, you must be certain that the intention is to give (rather than, say, lend), what is to be given, and to whom it is to be given. In the present case, there can be no doubt as to the subject matter and the objects. The only question is whether it is intended that a trust obligation be imposed or not.[24]As elsewhere in this case, therefore, the critical question is to determine the intention of the testator, by reference to the words used, in their context and in all the circumstances: see Williams on Wills, 10th ed, [49.1]. There is of course no need for the word ‘trust’ to be used: see eg Paul v Constance [1977] 1 WLR 527, CA. In considering this question, in my judgment there are four significant elements in the present case. The first is the statement that “benefit from it to go to Kosovo, for the people in need, especially children”. The second is that “Vladika Amfilohije [Radovic] to be in charge”. The third is the statement “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 patriarch and church authority in Kosovo”. The fourth is the imposition of a condition that the house in Montenegro be not sold until 2040.[25]I consider below the validity of the condition sought to be imposed by the testator, that the property not be sold before the year 2040. At this stage, the significance of the fourth element is that it shows that the gift being made was not intended to be an absolute gift. The testator by his will was seeking to control what happened to it. The first element referred to above, the destination of the benefit from this gift, also makes this clear. A gift to or for the benefit of “the people in need, especially children” is plainly a gift for the relief of poverty, and so charitable according to English law. It is also much narrower than the proper purposes for which the Serbian Church in London holds its property.[26]As to the second element, the role of Bishop Vladika Amfilohije Radovic, I have already mentioned that he was appointed by the will “to be in charge”, apparently in relation to this gift, and that the Probate Registry declined to accept that he had been thereby appointed executor of the will as a whole. But the fact that he was given a role (even if it is unclear what are the precise functions and boundaries of that role) itself suggests that the gift was not intended to be a beneficial one for the church, but rather one under the will to oversee the implementation of the gift.[27]That does not, however, make the Bishop a trustee. In English law, a trustee is one who has some property right, legal or equitable, which he or she must apply for the benefit of another or others, or for a particular purpose, rather than for his or her own benefit. This will does not give the bishop any property right. Accordingly, the most he could be would be the holder of a power relating to the property given. But even that is unclear.[28]Although the Bishop is to be “in charge”, I do not consider that the testator’s intention, collected from the four corners of this will, was to make it of the essence of the gift that the Bishop should run it. If the Bishop for any reason were not available, I think the gift would still be valid. He is part of the machinery of the gift, and not its essence. But, on the other hand, it is clear that the testator’s intention was that, if and to the extent that the Bishop was available to be involved, then he should be the person who, in consultation with the patriarch and other church authorities in Kosovo, made the significant decisions about the application of the benefits for the stated purposes, in the first instance.[29]Perhaps the most controversial element about this gift is the third, the expression of “full confidence” in Bishop Radovic that the gift “is going in right place in Kosovo only”. Two authorities in particular were cited to me, Re Williams [1897] 2 Ch 12, and Comiskey v Bowring-Hanbury [1905] AC 84. These two cases deal with the interpretation of so-called precatory language, where the language does not expressly impose an obligation, but expresses a wish or prayer (hence ‘precatory’) that a thing happen.[30]In the first case, the testator had given his residuary estate to his wife “in the fullest trust and confidence that she will carry out my wishes in the following particulars”. In the second case, the testator had given his entire estate to his wife “absolutely in full confidence that she will make such use of it as I should have made myself and that at her death she will devise it to such one or more of my nieces as she may think fit,” with a gift over in default of any disposition of such property in favour of the surviving nieces. In the first case the court concluded (by a majority) that the gift was an absolute one. The wife was entitled to deal with the property as her own, not subject to any trust or condition. In the second case, however, the House of Lords concluded (again by a majority) that the gift to the wife was subject to an executory gift over to the nieces, and that the wife was not free to dispose of the property as she thought fit.[31]In Re Williams, Lindley LJ said (at 18):
“There can be no doubt that equitable obligations, whether trusts or conditions, can be imposed by any language which is clear enough to show an intention to impose an obligation, and is definite enough to enable the court to ascertain what precise obligation is and in whose favour it is to be performed. There is also abundant authority for saying that, if property is left to a person in confidence that he will dispose of it in a particular way as to which there is no ambiguity, such words are amply sufficient to impose an obligation. … But still in each case the whole will must be looked at; and unless it appears from the whole will that an obligation was intended to be imposed, no obligation will be held to exist; yet, moreover, in some of the older cases obligations were inferred from language which in modern times would be thought insufficient to justify such an inference.”
[32]Lindley LJ pointed out that the particularity of the wishes expressed did not by itself impose an obligation. He said the case was one of “great difficulty” and that there were cases in the books which held that the words used should impose an obligation. But, as he said, every case is different, and turns on its own facts. The only principle is to ascertain the intention of the testator. The facts were out of the ordinary, because the wishes expressed by the testator involved the widow leaving to his daughter the proceeds of an insurance policy belonging to the widow as well as the proceeds of a policy which he was giving her by the will. He concluded that the testator had “not used language sufficiently clear to impose upon his widow an obligation” to perform the wishes stated. AL Smith LJ took the same view. Rigby LJ dissented and would have held that the words used imposed a condition on the wife (not a trust).[33]In the Hanbury case, Lord Davey said (at 89):
“The words which have been so much commented upon, ‘in full confidence’, are, in my opinion, neutral. I think it would be impossible to regard them as technical words in any sense they are words which may or may not create a trust, and whether they do so or not must be determined by the content of the particular will in which you find them.”
[34]Lord Lindley, dissenting, said (at 92):
“Having regard to the opinions already expressed it is impossible to say that a trust for the nieces, or at least for one of them selected by the wife, cannot be extracted from this will; but, personally, I think the construction adopted by Stirling LJ [in the Court of Appeal] is more in accordance with the language used than the construction contended for by the appellants. The wife was, in my opinion, intended to be the absolute owner, free from any legal or equitable obligation in favour of anybody and free from any executory gift over. I admit that a different construction can be put upon the will, but that does not appear to me to be the natural one.”
[35]So the question is one, not of principle, but simply of gathering the intention of the testator the words used in that context. This is a gift by a testator without children or a wife or partner of his own, to an institution for charitable purposes. The gift is effectively of residue, the testator having made pecuniary legacies to those family and friends that he wished to benefit. The confidence which he expresses in his will is not placed in the legatee, but in someone who is in a position of authority in and connected to the legatee. This is someone that he trusts to make the right kind of decision in the administration of the gift. Moreover, the gift is long lasting, since part of the property is not to be sold until 2040. In my judgment, bearing in mind that context, and in particular the four elements to which I have already referred, it was clear to me that this will created a trust of the gift to the legatee, the Serbian Orthodox Church in London, on trust for people in need, especially children, in Kosovo.

The Montenegro house

[36]I turn to consider the validity of the condition in relation to the house in Montenegro. The evidence is that this property has been occupied during the summer months by the Sixth Defendant and his mother, the testator’s sister in law. In the will, the condition stated as follows:
“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”
. It is not known why the testator chose the year 2040. Nevertheless, he did. The English private international law rule is that the essential validity of a testamentary gift of immovable property is governed by the lex situs, that is, the law of the place where the land in question is. That is the law of Montenegro. For the purposes of English proceedings, it is therefore necessary to have evidence of what that law is. Otherwise, the assumption is made that it is the same as English law.[37]The claimant’s solicitors obtained expert evidence of the law of Montenegro, and in particular its private international law, from the Montenegrin law firm of Jovović, Mugoša & Vuković, in Podgorica. Their evidence is contained in a bilingual letter of 10 February 2017, which in part reads (in the English version) as follows:
“Regarding this case, the provision of International Private Law Act … states that the law applicable to the succession as a whole shall be that of the state in which the deceased had his habitual residence at the time of his death. Testator may choose as the law to govern the succession as a whole the law of the state whose nationality he possesses or the law of the state in which he has habitual residence at the time of choice of applicable law or at the time of his death, while for the succession of immovable property testator may choose as the law to govern the law of the state in which the property is located. The choice of law must be expressly determined or clearly inferred from the circumstances of the case and in the form of a disposition of property upon death (will, joint will or inheritance agreement). The existence and material validity of the choice of applicable law shall be governed by the determined law. The provisions of the aforementioned law appoint to the law of Great Britain as applicable. However, they also provide the possibility of applicability of Montenegrin law, which is not substantially different from the British law regarding the provisions of inheritance law which regulates inheriting according to the will.”
[38]From this, it is apparent that the testator was able to elect and did by his will in fact elect (albeit impliedly rather than expressly) for the succession to his Montenegrin property to be governed by the place of his habitual residence, that is, England and Wales. The will contains a gift of that property, and the will as a whole is plainly governed by the law of England and Wales. So under Montenegrin law there is a referral back (renvoi) to English law. It is not expressly so stated by the foreign experts, but that must be a referral to English domestic law, otherwise we would get into a never-ending ping-pong match with Montengrin law: cf Casdagli v Casdagli [1918] P 89, 111, per Scrutton LJ. So English domestic law governs the gift of the Montenegrin land.[39]As I have said, the condition sought to be imposed by the testator, that the property not be sold before the year 2040, shows that the gift being made was not an absolute gift. If it were, under English law the condition would be void, and this would defeat the testator’s intention. The court must therefore choose, and the presumption will be in favour of upholding the testator’s intention. Accordingly, the condition imposed by the testator is valid, and the property or its rental income or other profits must be used by the trustee to relieve poverty in Kosovo until 2040, after which it may be sold, although the proceeds must continue to be used for this purpose.

Partial intestacy?

[40]Next, a question arose as to whether there was a partial intestacy, because of the use of the words “And all the money” following the gift of the three houses in the will. The next of kin have not pursued this, but I dealt with it at the hearing so that there would be no doubt. Historically, the strict meaning of ‘money’ in a will was narrow, and confined to money in hand or on deposit at the bank: Shelmer’s case (1725) Gilb 200; Lowe v Thomas (1854) 5 De G, M & G 315. Here the testator owned financial investments as well as cash deposits at the time of his death. The claimants submitted that the words of this gift were sufficient to encompass the testator’s residuary estate. They referred to what they called the presumption against partial intestacy, and to the statement of the Lord Hatherley LC in Edgeworth v Edgeworth (1869) LR 4 HL 35, 40.[41]In that case the Lord Chancellor said that the construction of the will concerned that he favoured:
“avoids the absurdity of supposing that the testator meant to create an intestacy in the event which has happened, and it disposes of the estate in the way in which it appears to me, from the first limitation contained in the will he intended to dispose of it.”
There can be no doubt that the desire of a testator making a will not to die partially intestate can be taken into account in construing the words used in that will. Statements to similar effect appear in other authorities, for example, in Re Cadogan (1883) 25 Ch D 154, 157, Re Adkins (1908) 98 LT 667, 668 col 2, and Re Taylor [1923] 1 Ch 99, 104.[42]I took account of the fact also that the gift “And all the money. Which is left” comes in the will at the end of the description of the various assets which the testator wished to dispose of, and of the gifts of those assets. From its situation, and the use of the words “Which is left”, it has the appearance of a residuary gift. The cases show that this is a factor which may lead the court to conclude that the word ‘money’ bears an expanded meaning, so as to cover other kinds of asset: see eg Re Mellor [1929] 1 Ch 446, 448; cf Re Taylor [1923] 1 Ch 99, 106[43]I also bore in mind that the testator’s will was handwritten by him, and in a language which was not his own, without any apparent professional assistance. It was in every sense a home-made will. The fact that the testator, not being a lawyer, was his own draftsman is one which has helped the courts in the past to expand the meaning of the word ‘money’ when used by such a testator: see eg Re Taylor [1923] 1 Ch 99, 105; Re Mellor [1929] 1 Ch 446, 448; Perrin v Morgan [1943] AC 399, 407; Re Barnes’ WT [1972] 1 WLR 587, 594F. (An early example of this technique, though not about the meaning of ‘money’, is Forth v Chapman (1720) 1 P Wms 663, 666.)[44]Indeed, as to the language point, the claimants obtained advice from Montenegrin lawyers on a number of issues relating to this will. One of them was whether a common translation of the English word “money” into Serbian would be a word that would cover non-money assets. The opinion of those lawyers was: “that a common translation of ‘money’ would encompass such assets as shares, unit trusts and the like”.[45]Moreover, so far as the strict, narrower meaning of ‘money’ is concerned, it was held by the House of Lords in Perrin v Morgan [1943] AC 399 that the word “money” used in a will was henceforth to be construed in its context and in the light of all relevant facts. The majority of the House, indeed, were prepared to say that there was no presumption in favour of the strict, narrower meaning of the word ‘money’. The minority said that there was such a presumption, though it yielded to a contrary intimation of intention from the context. All their lordships however held that on the facts of that case that the word covered all the personalty (though not the realty) not otherwise given. This more liberal construction has been applied subsequently: see eg Re Barnes’ WT [1972] 1 WLR 587.[46]In the present case we have a home-made and handwritten will, made by a testator using a language not his own, in which there is what appears to be a residuary gift using the word ‘money’. In all the circumstances, I thought it was clear that the testator meant to use the word “money” in this part of his will to cover the remainder of his estate, and certainly his non-money financial assets. Accordingly, in my judgment there was no partial intestacy in the present case.

Directions

[47]In the claim form, the claimants asked for directions as to distribution of the estate on the footing that the will was validly executed. This was not discussed at the hearing, and I have assumed that it has fallen away. But I note in passing that in any event only one of the claimants is a personal representative; they are both grantees ad colligenda bona (which however does not entitle them to distribute). The other personal representative is not a party.

Parties

[48]I add a further word on the parties to these proceedings. I have already mentioned the claimants. I do not understand why Stanka Breben as a personal representative was not joined as a party, especially in view of CPR rule 64.4 (as interpreted by rule 64..1(2)). But I will simply direct that notice of the order be given under CPR rule 19.8A by the claimants to the persons not parties but affected by it, ie Ms Breben and the persons who would take on intestacy.

Conclusion

[49]I hope that I have dealt with all the points which arose for decision at the hearing. I would be grateful if counsel could draft an appropriate order and submit it to me for approval.

Cited in 1 later judgment