The primary purpose of a will is to distribute any property that you own in the event of your death. The receivers of such property are called beneficiaries. In addition to leaving a sum of money to loved ones, it is common for an individual to leave a sum to a charity or other organisation.
The importance of an accurately drafted will cannot be stressed enough. An error can have a devastating effect if it has not been drafted or executed correctly, e.g. a sum of money may not be paid to the individual/organisation as intended by the testator.
The testator, domiciled in the UK but a Nigerian national, had gifted a sum of money to a specific religious charity in Nigeria with “the desire but without creating any legal obligation on them that this gift be used to support the charity and community activities in the district”.
On distribution of the estate the executors discovered that such charity does not exist. From a legal position, it is important to distinguish between (i) the charity did exist but no longer does and (ii) the charity did not exist and never has.
The executors diligently investigated and unfortunately concluded that the charity never existed. The executors identified a loosely connected religious charity in the UK as a potential alternative beneficiary, the organisation also had a charitable project to build a school in the specified district in Nigeria.
On receipt of the above information provided by the executors, the residual beneficiaries to the will disagreed with how to proceed in distributing the gift given that the specific charity stated in the will did not exist. Some were of the view that the gift had lapsed, and therefore should be paid into the residuary. Others were of the view that the gift should be paid to the alternative identified charity.
As many professionals working in probate are aware, resolving disagreements in relation to distribution of a will can become protracted and disproportionate to the sums involved. Great care needs to be taken when communicating with the parties involved in order to resolve the issue swiftly and satisfactorily.
In order to resolve this issue, it must be considered whether there is a mechanism that allows the executors to distribute the gift to an alternative beneficiary. The purpose of the gift must therefore be explored.
In Commissioners of Income Tax and Pemsel  AC 531, the court considered whether a purpose was charitable. A charitable purpose may be (i) trusts for the relief of poverty; (ii) trusts for the advancement of education; (iii) trusts for the advancement of religion; and (iv) trusts for other purposes beneficial to the community, not falling under any of the preceding heads.
It is clear that a court would find the gift to be charitable, however the issue is whether the executors have the power to distribute the gift to an alternative charity in the absence of agreement from all of the residual beneficiaries.
Any mechanisms that provide for an alternative beneficiary must be reviewed. The will gives discretion to the executors if the charitable beneficiary “shall have ceased to exist” at the date of the death of the testator. The STEP Standard Provisions should also be referred to, in particular paragraph 4.16.2 which states “if any charity ceases to exist […] the gift shall instead be paid to such charity as the Trustees decide having regard to the objects that were intended to benefit”.
As the charity does not exist it therefore cannot cease to exist and the above mechanism in the will and STEP Standard Provision cannot apply. It may be possible to argue that the executors do indeed have the power to distribute the gift to an alternative charity, however on the balance of probabilities this is unlikely to be successful.
In light of identifying the UK based charity and in the absence of a mechanism that allows the executors to substitute the beneficiary, it must be considered whether the “cy pres” doctrine could be applied. This doctrine would enable the gift to be distributed as near as possible to the testator’s intentions when they cannot be precisely followed.
It is arguable that an alternative beneficiary should be substituted but it is unlikely that a court would agree because the provision in the will is generic and the project of the alternative charity is very specific and via the parochial church council of another country. There is a risk that the court would determine that the gift to the alternative charity for the purpose of contributing to building a new school would not be as near as possible to the intentions of the will.
It will then fall to the executors and the residual beneficiaries to negotiate or litigate on how to proceed with the gift. This case study demonstrates the importance of an accurately drafted will so that the testator’s property can be distributed on their death according to their wishes.
If a defect in a will is discovered before the testator dies, and while the testator retains testamentary capacity, this may be rectified by creating a new will or codicil (an addendum that explains, modifies, or revokes a will or part of one).
It may become more complicated if the defect is identified after the testator has died. If the defect is due to a clerical error or failure to understand the testator’s instructions, an application should be made within six months of the taking out of a grant of representation, s.20 Administration of Justice Act 1982, to rectify the error or give effect to the testator’s wishes. However, this is a discretionary remedy.
A testator cannot exclude the application of the doctrine of lapse, although they can provide that the gift should, in the event of the earlier death of the beneficiary pass to the beneficiary’s personal representatives. If a gift has lapsed under a will, and no provision has been made to pass it on to the beneficiary’s personal representatives, then it will be put into residue for the residual beneficiaries to the will.
Writing a will can be a difficult task depending on the estate and how the testator wants to distribute their property. In order to avoid any potential litigation or falling out on the matter, it is important to have accurate information regarding the value of the estate (including debts), as well as details of the beneficiaries and executors. It is also prudent to incorporate mechanisms in the will in case any information in the aforementioned list changes and the will has not been revised. For example, if a testator makes a will whilst single and then subsequently marries, the marriage causes the will to be void. A clause about the anticipated marriage should be included in the will stating the testator intends for the will to remain effective after the marriage. Otherwise a new will must be made following the marriage.
This article has sought to illustrate some of the potential pitfalls of an inaccurately drafted will and how this can either be avoided or rectified. It is always advised to seek professional advice regarding your will, whether that is before you draft a will or instruct an organisation to draft one on your behalf.