The Jeff Cumberbatch Column – Where there is a will…

Jeff Cumberbatch – Columnist, Deputy Dean of UWI, Law Faculty, Chairman of the FTC

There is seemingly no end to the literature made available these days for the individual with an interest in the law to read. Now, in addition to the voluminous case law emanating from the numerous courts from the various relevant jurisdictions, there are the free electronic newsfeeds that offer commentary by legal firms on the most recent global developments in all areas of the law. The subscriber is free to select the areas in which he or she would like to read commentary on recently decided cases. One of these is “Mondaq”, issued every Tuesday and Thursday, and there is also the daily “Lexology”. Of course, it is not practicable for me to keep up faithfully with my daily readings from these two newsletters, so that I am sometimes made aware of a recent development of interest through the medium of a message only from a colleague who might draw it to my attention.

Such an item forms the basis of my musings today and should spark some interest in those who are interested in the law’s treatment of the testamentary dispositions of an individual who has sought to draft his or her own will, as is eminently possible legally. It is taken from a commentary by Ben Kinnear of the firm Hugh James Solicitors on the UK High Court decision in Vucicevic and Bond v Aleksic et al.

The testator in this case was born in Montenegro in 1923 and died in the UK, where he had arrived just after World War II, at age 91 in 2014. He spoke imperfect English and he left a handwritten or “holographic” will. This “will” was undated, save that it bore the year 2012, there was no attestation clause nor did it state who would be the executor, although it did purport that a senior bishop of the Serbian Orthodox Church would be “in charge”, but the Probate Registry declined to accept that he had been thereby appointed executor of the will.

The testator’s estate was valued for probate at £2,750,753, although a schedule of assets and liabilities showed 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.

His lack of proficiency in English was clear from the document which according to the court, contained “poor grammar, misspelt words and incorrect punctuation”. These lapses, however, did not thwart the court in its efforts to ascertain the intention of the testator. As was noted by the judge, “ bad English can still make a good will as long as the testator’s meaning can be understood”.

Even though it was held on the evidence that the testator was mentally competent and therefore of testamentary capacity, the provisions of the will themselves presented additional problems. For instance, there was a legacy of 10, 00 to “Brit. Cancer Research”. As his Lordship pointedly observed, “The problem here is that there is no such organization”. This issue was eventually resolved by dividing the legacy among a number of British cancer research charities after a fruitless search to ascertain whether the testator had any connection with any one of them.

Second, there was a pecuniary legacy to “Alex Dubljevic in Cardiff (Barrister)”, but the difficulty was that words immediately following, containing the amount to be given, had been obliterated. Then, after what was obviously a telephone number, the words “£2.000. Two” appeared.

As for this, an expert opinion was sought from a forensic document examiner who examined the will using special equipment. Her unchallenged evidence, which was accepted by the court, was to the effect that:

“In my opinion, I have recovered conclusive evidence of a partial entry underneath the crossed out area…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… 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.”

On this basis, the learned judge, relying on generally accepted authority, reasoned-

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.

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.

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.

The limitations of space do not permit me to examine the entire decision today, but the above exemplifies the effort to which a court may go to give effect to a testamentary disposition that was clearly intended by the testator or testatrix to be carried out according to his or her expressed wishes. A short few months ago, the Caribbean Court of Justice sought to ascertain what the local Parliament meant by the word “single” in a relevant statute.

At least that was written in grammatical un-obliterated prose.

21 thoughts on “The Jeff Cumberbatch Column – Where there is a will…

  1. Jeff, why do you not get tremendous mileage out of the incident when the British teacher at HC asked Elton Mottley to bend over and he kicked Elton in the bum (year 1952). Elton told his dad and “Rugged” called Mr. Hammond. This ended in an apology at a mid day special assembly when Mr. Fowles apologized to the whole school. Ii is so vivid, that I can remember when Mr. Fowles walked off the stadium, he made a misstep in his brown John White shoes.Haynes Darlington (M. Pharm. D) Canada. See my Bio on LinkedIN.

  2. Jeff how about this recent Louisiana judgement? Where asking for “a lawyer, dawg” is interpreted as a as “a lawyer dog”. In some areas of the US black community “dawg” is used instead of a name like “whats up dawg”, however the judges ruled that the man was asking for a lawyer dog and ruled he wasn’t asking for a lawyer.

  3. Interesting case

    Those who therefore continue to believe that English has to always reach a nonexistent perfection should come to better see the real problems, real people, must face.

    The notion that the English language should be the only way of being imprisons our ‘educated’ people in a slave-like regime from which there can never be an exit.

    Currently, this writer is struggling with a contract written in 15 different languages in which the legal translations are imprecise.

    In addition, it has always been amazing to us how people could be so different depending on the language which one knows them in.

    These demonstrate how a unifocal linguistic reliance could be problematic.

    That technical precision as claimed by the 11-Plus boys cannot be the only or best standard.

    Or internally, the ignorance of refusing to embrace all gradations of a language as used by the people. Language as a living organism.

    Separately Jeff

    On another thread some questions were raised this week regarding the FTC.

    We well understand that now may not be the time to make direct responses

    However, we hope that an opportunity may be presented, in the not too distant future, for your rejoinder.

  4. On another thread some questions were raised this week regarding the FTC.

    We well understand that now may not be the time to make direct responses

    However, we hope that an opportunity may be presented, in the not too distant future, for your rejoinder.

    @ Pachamama,

    The decision will be issued during this week…

  5. Or internally, the ignorance of refusing to embrace all gradations of a language as used by the people. Language as a living organism...


  6. @ Jeff Cumberbatch November 19, 2017 at 1:11 PM

    You and your team ought to be careful not to be seen as the booby trap to set off that ‘hiding’ political alibi for going to the IMF with the Devaluation devil in the detail.

    Just remember that in the ‘open’ eyes of Justicia: “Vox populi, vox Dei.”

  7. Today’s Sunday Sun reports that the constituency of St John is unique for providing Barbados with two of its Prime Ministers and similarly the constituency of St Michael South.The unsaid difference of course is that Barbados showed progress under one of the two St John produced but regression under both the St Michael South produced.Two of the worst Prime Ministers in the short history of an independent Barbados are Sanford and Son one elected in the 90’s and the other bigger JA in his teens.

    • Not sure why George Belle would toss Leroy McClean’s name in the hat at his mature stage of life. Why would he take on the stress now?

  8. Speaking of language I suppose Darlington avoided the word “dais” or “platform” for some reason,substituting stadium,an old form for stage,that went out with the outhouse.In any case I doubt he thought Fowles was acting a part in his apology to the assembled.Or was he?

  9. One can still hear Leroy making some good level headed contributions on brasstacks.Was there not some brouhaha in that constituency after the king passed on and the successor had other ideas for filling the void?

  10. Jeff,

    Thanks for that. Enlightening and probably surprises a lot of people that a holographic will is still relevant and valid in 2017.

    The extent to which the Court went to interpret the intentions of the deceased clearly demonstrate that the ‘intent’ is critical in interpretation, much as in a situation, as you infer later in your article, where a Court interprets the intent of Parliament.

  11. One of the first questions a good financial adviser will ask a client is about a will and inheritance (I suggest we re-read the postings on Smith v Selby). Inheritance is at the heart of good financial planning, that is why the wealthy have family trusts and foundations.

  12. @David November 19, 2017 at 4:24 PM “Not sure why George Belle would toss Leroy McClean’s name in the hat at his mature stage of life.”

    I am not sure why either.

    How about one of David and Mara’s daughters for the St. John seat?

    i am sure that the good people of St. John would be happy with that.

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