Vucicevic & Ors v Aleksic & Ors

When construing an ambiguous testamentary gift, the court must identify the recipient intended by the words used, read in their factual and commercial context. The testator’s connections, affiliations and the character of other gifts may be relevant. Tax efficiency and comparative charity law do not govern construction where the testator did not take tax or legal advice and there is no evidence that those matters influenced the will.

Under CPR rule 3.1(7), the court may vary an order where it has made no decision on a material issue or where the order rests on a fundamental mistake. The variation may correct the order so that it accurately reflects the judgment.

The judgment was a supplemental decision following an earlier judgment concerning a will that gave three houses to “the Serbian Orthodox Church”. Several emanations of that church existed, including organisations in Serbia, Montenegro and London.

The earlier judgment had concluded that the gift was held on charitable trust for people in need, especially children, in Kosovo. The resulting order omitted the words “in London”, and the parties’ apparent agreement as to the London church applied only if the gift were absolute. The fifth defendant applied under CPR rule 3.1(7) for the order to be varied so that the devisee was identified as the Serbian Orthodox Church in London.

The central issues were the proper construction of the gift and whether the court had power to vary its earlier order.

1. Application granted. The earlier order was varied by adding “in London” after “the Serbian Orthodox Church”.

2. The court’s function in construing the gift was to make sense of the words used by the testator in their context. Relevant considerations included the testator’s strong connections with England and Wales, his particular affiliation with the London church, the identity of another charitable beneficiary, and the role assigned to the senior bishop of the Montenegro church.

3. The testator’s connections with England and Wales and the identification of another charity as British carried greater weight than his birth, family and property connections with Montenegro. The focus of the charitable operations was Kosovo, so there was no need for the gift to be vested in Montenegro merely because the bishop was based there.

4. The tax efficiency of treating the gift as one to a registered UK charity, including consequences under the Inheritance Tax Act 1984, could not properly govern construction. The testator had apparently taken no tax or legal advice, and comparative charity law was not shown to have influenced his intention.

5. The court had power under CPR rule 3.1(7) to vary the order because either it had made no decision on the identity of the devisee or its decision had been based on a fundamental mistake. CPR rule 40.12 could have corrected the omission as a slip if that had been the only error, but the lack of agreement as to the devisee required variation under rule 3.1(7).

First-instance supplemental judgment following an earlier judgment in the same proceedings. The judgment itself does not give a citation for that earlier decision.