I have recently taken instructions from a long-standing client with a reputation for being somewhat of a maverick!
This has continued into his intentions with his Will, whereby he wishes to leave one third of his residue to such individuals who attend his funeral in equal shares, with such intentions not being revealed until after his funeral
I am mindful of many possible difficulties with this, including the administrative problems in identifying those who would be entitled on the day of the funeral, as well as possible challenges to the validity of any clause and suggestions of administrative unworkability.
Has anyone on the forum been involved in drafting anything similar?
How brilliant! On McPhail v Doulton principles I can’t see any reason why this is impossible, but I would imagine the testator will want to include instructions on how to publicise the funeral (in case the executor decides to tell no one about it and keep the third for himself!), and perhaps a provision to deal with latecomers, eg anyone who is present in the church (or wherever it is) 20 minutes after the start of the service. Does the wake count? What if there is a good excuse (flight delayed, seriously ill)? Best to include a certain amount of discretion for the executor, I would think.
Whilst I have heard of similar clauses being upheld, the main question may be how “funeral” is defined.
For example, will there be a service at a crematorium, followed immediately by the cremation, or will there be a church service followed by interment, either within the church grounds or elsewhere? If the latter, say, will the “funeral” be just attending the service, or will those intended to benefit also have to attend the interment… If there is also a funeral supper, will they also have to attend that?
The clause will need to be specific in what is required of any individual in order for them to benefit.
Also, who will “take the register”, and will they and/or the person officiating at the funeral be entitled to a share of residue also? Might be interesting to see how that person explains why they need to know who those attending are, and how to contact them.
Surely you just stick 1/3 of the residue into a discretionary trust with a detailed letter of wishes? There is then full discretion for the executors to judge whether or not a person has satisfied the criteria. It also reduces any possible claims as no attendees ever had any right to anything.
Afterthought - the initial discretionary beneficiaries can be a list of the most likely candidates and then ensure the trustees are given the power to add further beneficiaries. Once you have your list of deserving attendees, you draw up your deed (if needed) adding any extra beneficiaries.
A discretionary trust may be more appealing for the person called on to administer the estate but it may not be as appealing to the testator if he wants certainty that his wishes will be carried out. It would be sensible to include some discretion for the executors to determine who qualifies as an attendee and who does not, and for their decision to be conclusive against the beneficiaries, but beyond that, I don’t see why any discretion is needed.
What a fantastic wish. I would echo other sentiments here, there is no reason why this cannot be made valid but it must satisfy the 3 certainties. Would your client want the celebrant or funeral directors to receive, for instance?
I would definitely draft this as a discretionary trust. If your client is concerned about malfeasance on the part of his executors, he should name professionals who would be bound to see it through.
I heard of a case whereby those who benefitted from the residue by attending the funeral were those persons who signed the undertakers forms as being present at the funeral. This has the advantage of knowing at the outset who has attended, and how they can be contacted. The priest conducting the service just needs to announce to the attendees to fill in the form if they have not already done so for the Condolences Book, without giving the real reason for such request to sign the undertaker’s form.
Following in from this very interesting point, could a testator stipulate at a will reading that unless prospective beneficiaries agree amongst themselves a distribution of the testator’s assets with the least amount of IHT payable as possible the assets shall go wholly to charity?
Jonathan Golding
Golding Accountancy, Taxation Services
Speaking as one who, in a former life (as it were), had to transcribe the list of funeral attendees for the family, may I make a plea that names and addresses are taken by funeral director staff and not written by the attendees themselves? Otherwise, no one will be able to decipher the names and the residuary beneficiaries will remain a mystery…