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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.

Dealing with Difficult Executors

Dealing with Difficult Executors

Most of the time, a strongly worded letter from a solicitor is enough to encourage an unresponsive executor to take action. If they continue to be obstructive, a court order may be required.

Our experienced Charity Assist team is here to help protect your interests by ensuring executors fulfil their obligations.

Positive action

It is not uncommon for a charity to be aware they are entitled to receive funds from an estate that is being administered by an unresponsive or uncooperative executor. This can create unwarranted delay and frustration.

In most cases, a prompt from a solicitor is enough to get things moving, however, there are times when executors continue to ignore any attempts you make to resolve the situation. When these circumstances arise, it is possible to ask the courts to remove an executor from their post.

Alternatively, we may be able to apply for a court order requiring the executor to take action within a set timeframe, or forfeit their entitlement to administer the estate.

Our legacy protection experts often make these types of applications on behalf of the charities we assist. Where appropriate, we can seek the appointment of an independent professional to administer the estate, ensuring you receive your entitlement in a timely and correct manner.

Obtaining Estate Information

Obtaining Estate Information

Executors are not obliged to share the contents of a will until the Grant of Probate is issued. However, if a charity wishes to check if they are named as a beneficiary, it is considered best practice to do so.

Our legacy protection experts can help you liaise with executors who are reluctant to engage, ensuring your charity receives its full entitlement from a will and relationships are maintained with all parties involved.

Reasonable requests

If you believe your charity is named as a beneficiary in a will, but you have not seen a copy of the document, it is perfectly acceptable to write to the executors to request one. They do not have to comply until the Grant of Probate is in place, but there should be no reason to deny your request. There may be a particular reason why you need to see a copy of the will. For example, to confirm if you really do have an interest as a beneficiary. If you are unable to obtain the required information through negotiation with the executor, we can apply to the Probate Registry on your behalf for an order obliging them to comply.

Accessing accounts

If a will is written in such a way that your charity receives a share of the ‘residue’ of the estate (the remaining funds when all liabilities and legacies have been paid), you are also entitled to see the estate’s accounts. These will show the values of assets and any debt, giving you an indication of the amount you can ultimately expect to receive.

Again, if the executor does not provide this information voluntarily, we can apply to the Probate Registry on your behalf for it to be given under oath. Failure to comply with such an order can amount to contempt of court and could lead to further action, such as the executor’s removal from the post.

PR-sensitive Issues

PR-sensitive Issues

We understand the importance of reputation, particularly for charities and the vital work you carry out.

Our expert Charity Assist team places great emphasis on the resolution of disputes at an early stage, without court intervention. When acting on your behalf, we do all we can to avoid escalating matters unnecessarily.

Protecting your interests

Media coverage of a court case can have huge implications for charities and how they are perceived by supporters and the wider community. For this reason, we focus our legacy protection work on resolving disputes as quickly and amicably as possible.

Unlike many law firms, we do not rely on standard wording or a bank of (often outdated) precedents when writing correspondence and preparing documents. We tailor our work to your specific needs and the circumstances of the case. In doing so, we achieve the most favourable outcome for your charity and cause the minimum commotion.

Our legacy protection experts are experienced in achieving results, whilst acting in a manner that is commensurate with your reputation and obligations.

Challenging Estate Distributions

Challenging Estate Distributions

If an executor distributes an estate incorrectly, it ultimately affects all the beneficiaries. These situations can often be resolved through negotiation, but if this is not possible, our legacy protection experts are here to help charities bring a claim against the executor at fault.

Holding executors to account

Being the executor of a will is not usually a role someone has chosen and they often have very little experience, or knowledge, of their legal obligations. This can lead to mistakes arising that affect the distribution of an estate.

Sometimes we uncover genuine miscalculations in the accountancy of an estate. Where these occur, highlighting the error of the executor’s ways is usually enough to resolve the situation.

Unfortunately, there are executors who deliberately distribute money wrongfully to themselves or other beneficiaries, or claim for excessive, inappropriate and unauthorised costs.

When it becomes apparent an individual has caused a loss to an estate – and, therefore, to the beneficiaries – you can hold them personally liable. If they are not willing to accept responsibility for squandering or misapplying the estate funds, our Charity Assist team can bring a claim ‘in devastavit’ against the executor on your behalf.

Devastavit literally translates from Latin as ‘he has laid waste’ and comes into effect when mismanagement of an estate can be proven. If an executor is found liable they must account for the deficit from their own pocket.

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.

Support for Every Stage of the Legacy Journey

Expert legal guidance to help your charity grow, manage and protect legacy income.

0330 390 7343

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