Can any of you confirm if a legacy in the following form is valid or should I phrase it as a proper discretionary Trust.
The sum of ONE HUNDRED THOUSAND POUNDS (£100,000) to such charity or charities as my Trustees select (and if more than one in such shares as my Trustees shall in their absolute discretion decide) and I EXPRESS the wish that in exercising these powers they shall have regard to any wishes of mine which may come to their attention
It’s valid in my view and it establishes a charitable trust. The intention to create a binding trust is clearly expressed, the gift is to trustees who are plainly not entitled beneficially, the trust fund is defined, and the beneficiaries are certain too. What can be rendered certain (here by their being selected) is itself certain in law.
They comprise an open-ended class but not one void for uncertainty as the trustees are easily capable of ascertaining whether any prospective payee is a charity.
In the absence of a definition of that word (is there one in the Will?) it will be a matter of identifying which law applies. Wills unlike lifetime trusts rarely have a governing law clause but with any luck this will not prove controversial if a Brit is the will maker. The 3 UK jurisdictions’ charity law is convergent. Fun and games otherwise so I reserve judgment.
Even a power for trustees of a non-charitable trust to add as a beneficiary anyone they like is not void.
It is not a half secret trust so there is no worry about whether the wishes were communicated to the trustees or when.
This is not a s143 IHTA job as the wording is not precatory and the trustee-legatees cannot ignore the wishes and keep the money.
It is not void for perpetuity as it is charitable. Nevertheless it would be a pain if the trustees sat indefinitely on their equitable bottoms. Cross that bridge if it presents itself.
Ultimately the gift cannot fail as it evinces a general charitable intention and a cy-pres scheme of some kind will be cooked up by a Chancery judge if need be.
The trustees that do accept office therefore have a duty to carry out the valid trust and no doubt will welcome guidance from the deceased’s wishes if accessible,
though are not bound by them.
After probate they should get on with that within a reasonable time or risk censure. I would expect them to disburse the funds promptly once freed from the admin period to avoid the headache of investing them. It would be barmy to register the trust itself as a charity and such expedited distribution will dodge the TRS: TRSM23060 (income below £5000 pa).
Jack Harper
Thank you very much Jack, that covers all my uncertainties