Analysis
The deceased made a will dated 26 May 2016. The will gifted the residue of the deceased’s estate in equal shares to 15 charitable beneficiaries. The construction of seven of those gifts was in doubt.
The gifts in question had been carried over from the deceased’s previous wills, of which only one had been located. Will files did not survive and the drafting solicitor had little recollection of what the deceased had intended. There was little evidence of charitable gifting made by the deceased in life.
The probate value of the deceased’s estate was £1.48m and each one-fifteenth share of residue was indicated as being worth circa £105,000.
Clause 13 of the will contained errors but, in effect, provided that if, before the deceased’s death, any charitable body had ‘changed its name or amalgamated with or transferred its assets to any other body’, then the gift was to be distributed equally among the other charities.
HHJ Davis-White KC, sitting in the High Court in Newcastle, restated the applicable principles of the construction of wills and of charitable gifts and construed the gifts accordingly.
Held:
Although a number of the gifts may have been ambiguous for the purposes of s21(1) of the Administration of Justice Act 1982, there was no relevant evidence to admit under that provision.
Clause 13 applied only where the charity had changed its name after the date of execution of the will. This was consistent with the wording of that clause and the principle that a will speaks from date of execution.
The gift to the ‘Animal Defence Society’ was to a charity that did not exist. A company called the Animal Defence Society Ltd had been wound up in 1989 and its assets and charitable work had been transferred to The Animal Defence Trust (ADT). As this had happened prior to the execution of the will, the gift contained a misdescription and was to be construed as a gift to the ADT; Re Magrath [1913] followed. If this conclusion was wrong, there was a general charitable intent and the cy-près scheme would have provided for payment to the ADT. Clause 13 did not apply as the changes were prior to the execution of the will.
The gift to the Animal Health Trust (AHT) was a gift to the corporation itself and not a gift on trust. The gift was valid even though the address given was possibly incorrect. It was unclear if the AHT had entered liquidation prior to the death of the deceased but the body corporate existed at that date. The current status of the AHT was unclear. If the AHT was still in liquidation, its liquidators would take the gift; if the AHT had been dissolved, it would be payable bona vacantia to the Crown. Clause 13 did not apply.
The gift to the Society for the Promotion of Nature Reserves was a gift to a charity which had changed its name to The Royal Society for Wildlife Trusts prior to the date of the will. This was the same corporate charity and the gift was to be construed accordingly. Clause 13 did not apply.
The gift to The Donkey Sanctuary at Woodley Lane, Berkshire, was to a charity at that address (though the address had been misspelt) known properly as The Helping Hand Animal Welfare League Donkey Sanctuary (HH). HH had been closed in 1974 and its operations transferred to what was now The Donkey Sanctuary (TDS). As a matter of textual construction, the inclusion of the address in the gift could not be ignored and the gift was, or could be, to HH. The inclusion of a capital ‘T’ in the gift was insufficient to indicate a gift to TDS; National Society for the Prevention of Cruelty to Children and the Scottish National Society for the Prevention of Cruelty to Children [1915] distinguished. (Although, had context been considered, the gift would be construed as one to TDS.) The gift was not contingent upon the continued existence of HH; it was a gift to an unincorporated charity and thus construed as a gift for its charitable purposes which were now carried on by TDS. If that was wrong, a scheme in favour of TDS would have been directed, following In Re Finger’s Will Trusts [1972].
The gift to the ‘Heavy Horses Preservation Society’ was to a charity that did not exist. It was construed as a gift to an extant charity called The Shire Horse Society. Clause 13 did not apply.
The gift to the ‘Society for the Preservation of English Countryside’ was to a charity that did not exist. Various charities whose name included the ‘Protection of Rural England’ were engaged in the preservation of the English countryside. Many were local but there was no evidence that the deceased had intended a local gift. Two of those charities were national: a company and a trust. One of these was the intended beneficiary. The will was to be construed on the date it was made, at which point the company was ‘active’ and the trust was a ‘shell trust’. With nothing else to go on, the gift was thus construed as a gift to the company Campaign to Protect Rural England. Clause 13 did not apply.
The will was construed accordingly.
JUDGMENT HHJ DAVIS-WHITE KC: Introduction [1] In these Part 8 proceedings I am asked to determine the true construction of certain gifts of residue in a will. The will is dated 26 May 2016 (the ‘Will’). It is the last will and testament of Marjorie Robinson Thompson (the ‘Deceased’). She died on 9 April 2020. …Continue reading "Dryden v Young & ors [2024] WTLR 843"