Legacy fundraising is a key income stream for many charities, but recent cases have shown that poorly drafted wills can cause headaches for charity beneficiaries.

Poor drafting can lead to uncertainty over who the testator intended to benefit in their will and what he intended them to receive. Executors of such wills may be obliged to apply to court for assistance in determining the correct interpretation (“construction”) of the will, or even an order that the will be amended (“rectification”).

BWB's Charity Legacies team always advises our charity clients to encourage potential donors to have their wills professionally drafted to try to avoid such difficulties, but even that does not always solve the problem. A raft of recent cases involved wills drafted by solicitors, which fell well short of the standards expected.

The court’s power to rectify (or correct) a will applies where the court is satisfied that the will fails to carry out the testator’s intentions because of a clerical error or a failure to understand his instructions. It is key that the court must be satisfied that it is able to discern the testator’s actual instructions.

The scope of the court’s power to rectify a will was considered by the Supreme Court in the well-publicised case of Marley v Rawlings [2014], which is generally considered to have widened the concept of “clerical error”. In that case, the “clerical error” was that the husband and wife had both executed each other’s wills by mistake.

There have been numerous other decisions since Marley where the courts have followed the same pragmatic approach in striving to give effect to the testator’s intentions, such as Slattery v Jagger [2015]. A particularly interesting example for charities is the case of Re Harte [2015].

In that case, despite Mrs Harte sensibly instructing solicitors to draft her will, the will (described by the court as “poorly drafted”) contained numerous errors. For example, Mrs Harte apparently wished to leave her residuary estate to a number of beneficiaries, including charities, but some of the charities’ names were wrong, and one charity referred to did not even exist! It was also unclear how much each charity was to receive.

Because of these errors, the charities were at risk of losing out on their legacies, and the executors were left with little choice but to apply to court. The court, after considering issues of construction and rectification, took a pragmatic approach and sought to uphold what it was satisfied were Mrs Harte’s intentions regarding her estate. Among other things, the court decided that:

  • Although three charities were incorrectly named in the will, the registered charity numbers stated in the will corresponded to well-known charities. The court decided that the correct beneficiaries should be treated as those corresponding to the charity numbers. This is a very useful approach. We always recommend to our charity clients that they encourage donors to include their charity’s name and registered charity number in their will, and this case shows the importance of this – it can result in saving legacies to your charity where the correct identity of the beneficiary is unclear.
  •  “West Berkshire Community Hospital” would receive its share of Mrs Harte’s estate even though in the will the hospital was wrongly described as “Newbury Hospital”. The court noted that the organisation’s correct address had been included in the will, and that West Berkshire Community Hospital was commonly known in the locality as Newbury Hospital.
  • Although the will contained a gift to an organisation which did not exist (“West Berkshire Ambulance Hospital”), the court was satisfied, from the limited evidence of Mrs Harte’s instructions available, that Mrs Harte had intended to benefit an air rescue or air ambulance service serving the West Berkshire area. As there was only one charity which met that description (the Thames Valley and Chiltern Air Ambulance Trust), the court ordered that reference to “West Berkshire Ambulance Hospital” in the will be replaced with “Thames Valley and Chiltern Air Ambulance Trust”.

Finally, another issue highlighted in this case was the poor record keeping by the solicitors who drafted the will. The solicitors’ will file was described by the court as “limited” and it is clear that they did not keep proper records of attendances and instructions given by Mrs Harte. We encourage our charity clients to keep attendances of any discussions they have with potential donors about leaving a legacy to their charity as well as copy correspondence. This kind of evidence can be crucial in a case such as this.

If you or any of your colleagues are experiencing similar or related issues with any of your legacies, do get in touch with our Charity Legacies, Trusts & Probate Disputes team: we offer a free and confidential, no obligation, initial consultation.

Posted on 09/06/2016 in Legal Updates

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