NOTE: This article was published in January 2015 and reflects the law as it stands on the date of publication and not at any later date.
My purpose in this article is to highlight the sort of issues facing charities in deciding whether or not to litigate over a legacy, or residuary gift, contained in a Will. In particular, I shall be looking at a number of cases where charities have faced such difficult decisions, some of which they have got wrong.
In 2011 the 7 main animal charities received nearly £170 million in legacies. £54 million was bequeathed to the RSPCA alone. Legacy income is a major benefit for many charities, which they are rightly concerned to protect.
Assume that a charity is left a substantial legacy, or residuary gift, in a Will, which is challenged by the testator’s children on the grounds that the testator lacked testamentary capacity, or did not know and approve of the contents of the Will. There could also be a claim in proprietary estoppel, alleging that the testator promised to make a gift to the claimant, who relied upon that promise to his/her detriment.
Alternatively, the charity (which is a beneficiary under an earlier Will) may want to challenge a later Will, made by a testator, who had questionable testamentary capacity, or where the Will was executed in circumstances which give rise to a suspicion that it did not represent the testator’s true wishes.
Another common scenario is that the Will is challenged by a spouse, child, cohabitee, or dependant, under The Inheritance (Provision for Family and Dependants) Act 1975.
There may be an issue as to the construction of the words used in the Will. On one construction the charity would receive far more than on an alternative construction favouring other beneficiaries; or there may be a claim to rectify the Will, where it is alleged that the Will contained a mistake in conferring a benefit, or too much benefit, on a charity.
Charities are, therefore, commonly faced with decisions as to whether or not to litigate in order to protect their legacy income. Continue Reading
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