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What happens if the charity named in your Will doesn’t exist?

25 October 2021 Category: Private Client

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The recent Court of Session decision in the case of Vindex Trustees Limited [2021 CSIH 46] provides some insight into what happens when a beneficiary in a Will does not exist.

Vindex Trustees Limited had been appointed as the sole executor in the Will and Codicils of Estelle Brownrigg. Ms Brownrigg had been born in South Africa in 1945 and lived there until her teenage years. She then moved to London and met and married her husband. The couple then lived in Johannesburg, Brussels and Canada and finally moved to Scotland in 2012. The couple didn’t have any children. Ms Brownrigg’s husband predeceased her and her estate at the time of her death amounted to almost £1.35 million.

Her Will, which was signed in March 2003, contained a clause directing that the residue of her estate be left to the Scottish National Party and three different charities. One of these was named in the Will as “Nelson Mandela Educational Fund, South Africa” and it was to receive a one sixth share of the residue. The problem was, no charity of that name could be found either as existing at present, or having ever existed.

The Will also contained a clause which read as follows:

“Declaring that if any legatee has changed name or has amalgamated with or transferred its assets to any other body or has been wrongly designed then my executors shall give effect to such legacy as if it had been made to such body with similar purposes as my executors may in their sole discretion decide.”

Whilst this clause seems to allow for substitution, the executors took Counsel’s opinion which advised against this on the basis that the Nelson Mandela Educational Fund, South Africa had never existed. That means it couldn’t have amalgamated with another charity or changed its name or had been wrongly designed.

Investigation revealed that there were three charities of similar names in existence in March 2003. These were (1) the “Nelson Mandela Children’s Fund, (2) “The Young Woman’s Christian Association (Nelson Mandela Port Elizabeth)” and (3) “Nelson Mandela Local”. The longest established one of these in 2003 was the Nelson Mandela Children’s Fund and, in addition, its purpose was to educate disabled children and assist young people in developing skills for work. The executors took the view that the Nelson Mandela Children’s Fund was the most likely intended recipient of the legacy.

This led the executors to petition the Court of Session for a ruling on the matter, asking the court to affirm that decision.

The court considered previous case law in this area as well as the general rule that erroneous description of the object of a legacy is not fatal, extrinsic evidence is admissible to determine the identity of the intended recipient and that the identity of the legatee need not be determined with absolute certainty – reasonable certainty will suffice.

On its review of the information before it, the court noted that the executors had reached the conclusion that it was most likely that the deceased’s intention had been to make the legacy in favour of the Nelson Mandela Children’s Fund, and it was that decision that the executors were asking the court to endorse.

The court also said:

“These are matters concerning the administration of the executry estate and fall to be resolved by the exercise of the executor’s managerial discretion and good judgment. The court does not consider that it should adjudicate or give advice on the matter”.

Whilst the court declined to give a view on the matter, it did acknowledge that the executors had “not acted unreasonably in raising the petition on the basis of advice from counsel”.

As you can see, whilst the courts are viewed as the final adjudicators in most cases, on rare occasions, such as this, they will decline to give a view.

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