I’m dealing with the estate of a woman who died in 2019 and left her estate between various charities.
One of these charities is a church which closed in 2018. I don’t believe that the church was registered with the Charity Commission, however I am informed that it came under an umbrella charity which dealt with a number of churches. When the individual church closed in 2018, the church building was sold and the proceeds transferred to the umbrella charity.
The umbrella charity are also already included separately as another of the residuary beneficiaries.
The Standard Provisions of STEP (2nd edition) apply to the Will.
My questions are:
(1) Given that the church closed in 2018 (before the testator’s death), would standard provision 4.16.2 apply so that the Executors could choose another similar charity to benefit at their discretion? Or do the funds have to go to the umbrella charity, in addition to their existing share already listed in the Will?
and
(2) How could the Executors protect themselves from any disputes about this? Would it be best to seek counsel’s opinion, or perhaps get approval from all the other charities?
In this type of case, perhaps an opinion ought to be sought. Imo this would depend on the size of the gift. I’d suggest you could rely on the caselaw see Re Withall [1932] 2 Ch 236
You need a “general charitable intention to benefit a particular type of charity” which I’d argue you hold in this case.
As you suggest even with caselaw or perhaps an opinion neither prevents disputes.
I’d draft a letter (to all involved parties) outlining caselaw is on your side and suggest a course of action allowing 21 days for responses.
If the gift was specifically to be applied in relation to the church in question, the fact the church is no more brings the gift within STEP Provision 4.16.2. This would be the case even in the church ceased to exist after the testator’s death but before any distribution had been made to it.
The meaning of Provision 4.16.2 is clear and it is now for the executors to exercise the discretion granted to them in the same manner as if the provision had been in a clause within the will and not just incorporated by reference.
To seek approval of the executors’ intended course of action may just be inviting an objection!
I agree the executors might apprise the beneficiaries of their intention, so as to drive out any potential objections. However, if they seek counsel’s advice where a provision is clear, the charities might object to the “unnecessary” expense incurred.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Thank you both for sharing your thoughts on this case. In the end, the Executors decided that we should write to each charity to obtain their agreement that the legacy should pass to another similar charity, in accordance with STEP Provision 4.16.2.
Since then, another query has arisen. Given that the original church in question closed down in 2018 which was before the testator had even written her Will, does this mean that the charity was non-existent at the time she wrote her Will and therefore the gift fails for impossibility?? And therefore becomes a partial-intestacy?
Does anyone have any thoughts? It is getting complicated…!
If the charity did not exist when the will was made, I agree that STEP provision 4.16.2 would not apply.
Mindful that all other gifts in the will are said to be to charities, I suggest the will displays a general charitable intention such that the Cy-Pres doctrine would apply rather than there being a partial intestacy.
The executors might consider seeking a short opinion from Chancery counsel to, hopefully, support the application of the doctrine, which, in any event, the Charity Commission might require to enable it to exercise its jurisdiction.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals