At the Institute of Legacy Management’s Annual Conference 2018, Bates Wells Braithwaite presented on a wide range of legal topics. We gave an overview of key GDPR considerations, highlighted learnings from recent cases, considered the implications of turning down a gift, discussed executor costs and communications and took a look at property gifts.

Here’s a selection of questions from the audience on the day, with our answers.

Q:  GDPR: when you instruct a solicitor for legal advice does all documents which contain some degree of personal data sent by email has to be password protected?
A: No; they don’t have to be; but it would be a good means of demonstrating compliance with the security principle as no information transferred online can be guaranteed safe.

Q: How does GDPR affect homeworkers?
A: A home worker will be a data subject like any other; so in theory GDPR applies as normal. There is a general exemption from obligations for processing data for household purposes, but its application is circumstance specific.

Q: If a property gift is refused does it fall into the residue? What about if the Charity is the residuary beneficiary?
A: This will depend on the terms of the will, but if no further provision is included relating to the property it will usually fall into the residue. If the charity is also a residuary beneficiary, it will receive what is left in the estate after all assets have been disposed of, including the property and so it may be necessary to disclaim the charity’s residuary interest too.

Q: Is a charity required to make an ex gratia payment in circumstances where it appears that there may be a moral claim for funds or property but no corresponding legal claim?
A: In summary, the ex gratia mechanism only comes into play where the possible recipient of the payment does not otherwise have any legal claim to it but where nonetheless a charity’s trustees might feel that there is a strong moral case for making a payment to the possible recipient. This is reflected in the Charity Commission’s definition of an ex gratia payment in its Guidance (CC27) Ex Gratia Payments by charities.

However, that is not to say that a charity “must”, as a matter of course, make a payment in these circumstances. Each case will depend on its own facts and trustees will need to be clear on why the charity believes there is a moral case for making a payment. In other words, what are the reasons for doing so?

It can be useful to consider the Court’s guidance in the 1969 case of Re Snowdon Dec’d ([1970] 1 CH 700) where the court decided, in summary, that charity trustees could make ex gratia payments in cases where it could fairly be said that if the charity were an individual it would be morally wrong of him to refuse to make the payment.

Charity trustees ought to bear in mind that, currently, the charity would need to apply to the Charity Commission for permission to make an ex gratia payment. However, in the Law Commission’s final report on Technical Issues in Charity Law it is proposed that in the future payments below certain levels should be made without Charity Commission consent – so watch this space!

 


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Leticia Jennings

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Posted on 16/05/2018 in Legal Updates

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