Vucicevic & Anor v Aleksic & Ors

In construing a home-made will, the court must ascertain the testator’s intention from the words used, read in their context and in the circumstances. A trust may arise without the word “trust” if the will sufficiently demonstrates an intention to impose obligations and identifies the property and beneficiaries or purposes. Precatory language is neutral; its effect depends on the whole will. A testamentary gift of foreign immovable property is ordinarily governed by the lex situs, but a valid renvoi may lead to the application of English domestic law. A condition restricting sale may be upheld where that construction best gives effect to the intended trust. The word “money” may, in context, include non-monetary financial assets and operate as a residuary gift.

The claimants, acting in connection with the administration of the estate of a testator domiciled in England and Wales, sought rulings on the construction and effect of a handwritten will. The will contained gifts to the Serbian Orthodox Church, directions concerning the use of the gift for people in need in Kosovo, a restriction on selling a house in Montenegro until 2040, and a final gift of “all the money which is left”.

The court was required to determine the validity and effect of an obliterated pecuniary legacy, the identity of the devisee, whether the church gift was absolute or held on trust, the governing law and validity of the sale restriction, and whether the will produced a partial intestacy.

1. Obliterated legacy. The obliterated legacy was construed as £8,000. The later £2,000 entry was unattested and ineffective, but the obliteration was conditional on a valid substitution. Applying dependent relative revocation, the earlier legacy remained effective. The evidence established its amount on the balance of probabilities.
2. Trust. The gift of the houses to the Serbian Orthodox Church in London was a trust for people in need, especially children, in Kosovo. The court applied the three-certainties analysis. Subject matter and objects were certain. Intention was gathered from the direction that the benefit should go to Kosovo, the Bishop’s supervisory role, the expression of confidence in him, and the restriction on sale. The Bishop was not a trustee because the will gave him no property right, but his intended involvement was part of the machinery of administration.
3. Precatory language. The authorities, including Re Williams [1897] 2 Ch 12 and Comiskey v Bowring-Hanbury [1905] AC 84, showed that expressions such as “in full confidence” are not technical and must be construed in the context of the whole will. In this will the surrounding features demonstrated an intention to impose trust obligations.
4. Montenegro property. The essential validity of the testamentary gift of immovable property was governed by the lex situs. The expert evidence established a renvoi to English law, and therefore English domestic law governed the gift. The restriction on sale until 2040 was valid and the property, income and profits had to be used for the charitable purpose until then. Thereafter the property could be sold, but the proceeds remained subject to that purpose.
5. Residue. Although “money” could bear a narrow meaning, its meaning depended on context. In this home-made will, the words “all the money which is left” operated as a residuary gift covering the remaining estate, at least including the financial assets. There was no partial intestacy.
6. The parties were directed to prepare an appropriate order, and notice was to be given to affected non-parties under CPR rule 19.8A.