High Court cannot satisfy Montenegro’s request for certificate of inherited property

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The STEP website reports that the England and Wales High Court (EWHC) has declined to satisfy a Montenegrin court’s request for a certificate that specifies the details of a property in the country that was made by bequest in an English Will.

Owned by Montenegrin national Veljko Aleksic who died in 2014, the property was left to the Serbian Orthodox Church in a bequest in his handwritten English Will. In 2017, it came to the attention of the English courts when the wording had to be interpreted and it was ruled that the house was settled on trust and could not be sold until 2040.

The order was transmitted to Montenegro, but the competent court there decided it was not satisfied and asked for the order to be rewritten to include a certificate of details that included ‘’all data that are necessary for enforcement with the Real Estate Register, [namely] full details data concerning specific real estate property, i.e. the number of property title deed, municipality, cadastral parcel number etc”.

Information not in dispute

This information was not provided to the EWHC because it was not in dispute and was thus the responsibility of the deceased’s personal representative to do so.

When the case returned to the EWHC this month, it included a request that the court’s earlier order be amended under the ‘slip rule’ to meet the Montenegrin court’s requirements.

However, the judge decided that the slip rule was not applicable because the court had not considered the property’s registration details at the 2017 hearing, and it could not now certify a decision that it hadn’t made. The ruling said the court “would be doing this behind the backs of all the other parties to the litigation”, and it would be based on new evidence others had not seen.

Differences in common law and civil law systems

The judge attributed the problem to differences in the way common law and civil law legal systems deal with properties after someone’s death. The civil law system of Montenegro dealt with succession through a notary and an officially issued certificate of inheritance. There was no personal representative.

In contrast, England and Wales has no cadastral (Wikipedia defines a cadastre as “a comprehensive land recording of the real estate or real property’s metes-and-bounds of a country”) property system. It does not require a notary or official inheritance certificate. The personal representative manages the estate administration and distribution. The official courts only intervene in disputes.

A certificate, the judge ruled, would not solve the difficulty. He dismissed the application for an order under the slip rule and said all that could be done was to bring a fresh claim for a declaration of the details of the Montenegrin property.

 

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