A will should reflect the deceased’s true intentions and wishes. However, wills can sometimes be challenged.
If your charity is named as a beneficiary of an estate and the will is subsequently overturned, you may no longer be entitled to receive a gift. There may also be circumstances in which it is appropriate to challenge the validity of a later will that excludes your charity.
Support for Every Stage of the Legacy Journey
Expert legal guidance to help your charity grow, manage and protect legacy income.
Defending Your Rights as a Beneficiary
People leave legacy gifts to thank or support the good work of a charity by giving them a share of their estate. If a relative or other beneficiary has concerns about the validity of the deceased’s will, they can mount a legal challenge.
If a will is disputed successfully and declared invalid by a court, the terms of any previous will (which may not include your legacy gift) take effect. Accordingly, charities are entitled to defend such claims in order to protect their legacy entitlement.
Our TE Charity Assist team is often asked to act on behalf of charities that find themselves in this position. We can provide expert advice about the circumstances surrounding the disputed will and help build your defence.
Challenging wills
We also help charities who believe they are to benefit from an estate, but find their entitlement has been written out of a subsequent will.
If the will seems suspicious and changes the way an estate is to be distributed, you can potentially challenge its validity. If successful, it will be revoked and the terms of an earlier version take effect.
Our legacy protection experts have a proven track record of bringing successful claims that have overturned the validity of wills. With our assistance, you can ensure your charity benefits from the legacy gift as the testator intended.
Construction of Wills
There are occasions when wording in a will creates uncertainty, ambiguity or dispute. If the beneficiaries cannot agree, it may be necessary to ask the courts to interpret the testator’s intentions.
We work with charities of all sizes to ensure your interests are represented and considered when the construction of a will is in question. We will help you protect a legacy gift and provide clarity for estates and other beneficiaries.
When help is required
The construction of wills is often called into question when the document was homemade or prepared informally. However, even professionally drafted wills can require court intervention where there is genuine uncertainty regarding the interpretation of a provision.
Unclear drafting, particularly if it relates to a charitable gift, can lead to uncertainty about the intended beneficiary, the nature of the bequest, or the share to which a charity is entitled.
When considering issues of construction, a court will look primarily at the will’s wording in its entirety, to ensure it is interpreting the language used in context. In some circumstances, the court will also consider any background facts known about the testator at the time the will was made, if it helps to resolve the ambiguity. This may include evidence of charitable giving or known connections with particular charities.
Supporting you
Issues relating to the construction of wills can affect charities, both as beneficiaries and as personal representatives. If you are acting as an administrator or executor, it may be necessary to ask the court for guidance if there are ambiguous clauses. This ensures the estate is administered correctly and safeguards against future claims.
Our expert legacy protection team has extensive experience in drafting wills containing charitable bequests, helping to minimise the risk of future disputes. We are also adept at making applications to the courts when uncertainty cannot be resolved.
Cy-près/Charity Commission Applications
If it is not possible or practical for a legacy to be inherited in the way it was intended originally, there is a principle which can be applied to aid the administration of an estate.
The courts or Charity Commission can apply cy-près, which means ‘as near as possible,’ to allow a charitable gift in a will to be donated as close to the original intention as possible where the gift cannot take effect. Our legacy protection team is skilled in advising on these issues and will help ensure your charity receives the inheritance intended by the testator in accordance with the testator’s wishes.
When is cy-près needed?
Cy-près is most commonly required when a charity has ceased to exist, its purpose has changed, or a gift cannot be fulfilled as specified by the deceased. In these cases, the courts or Charity Commission may approve an application to redirect the gift to another charity that closely reflects the testator’s intention.
In practice, the need for cy-près may also arise if charities merge, change structure or have been named/identified incorrectly in a will. Often, these issues can be resolved without a formal application, but if there is any uncertainty, or a dispute arises, legal intervention may be required to ensure the gift is attributed properly.
When deciding if the cy-près principle can be applied, the court or Charity Commission will consider whether the deceased demonstrated a general charitable intention, or wanted their gift to benefit a specific organisation. If this can be established, the inheritance may be redirected to a charity carrying out similar or related work.
Charity Commission guidance
There are other circumstances in which you may need to consult with, or obtain authority from, the Charity Commission before making a decision about a charitable asset or legacy income. This is usually to ensure your trustees act in accordance with their duties and remain compliant with the organisation’s guidelines.
Situations in which it may be necessary to involve the Charity Commission include:
- When a charitable gift cannot be applied exactly as stated in the will
- When a compromise or settlement is proposed
- When trustees must make a decision that will affect your charity’s entitlement
We recommend engaging with the Commission as early as possible to ensure all information is considered properly and realistic timeframes can be factored into the estate’s administration. Planning ahead and mapping out your options clearly can help avoid unnecessary delays. Seeking official guidance also provides protection for trustees who have difficult or sensitive choices to make.
Rectification
It is possible to apply to the court for a will to be ‘rectified’ if your charity has lost out on an inheritance due to an error.
Our Charity Assist team has the legal knowledge and experience to identify if rectification of a will is possible. We will support your organisation throughout the entire process, ensuring you receive the gift you were expecting.
What is Rectification?
There are occasions when a will is prepared by someone who did not fully understand the instructions they were given. Clerical errors during drafting can also cause charities to lose out on inheritance that was intended to benefit them.
Instead of making a claim in negligence, it is possible to ask the courts for a will to be rectified. This gives legal effect to the deceased’s known intention and allows you to benefit from a legacy that may otherwise be lost.
A will writer, solicitor or any other person/organisation who has prepared the will in question can consent to an application to rectify its contents; after all, it may of course be that a genuine mistake has been made, and a negligence claim would preferably be avoided.
A claim for rectification must be made no more than six months from the date of the Grant of Probate. It is therefore essential you seek advice as soon as an issue is identified.
Contact us
If your charity is being impacted by a will validity dispute, please contact the TE Charity Assist team. We are happy to have a free, no-obligation initial discussion about your specific circumstances.
