Analysis
The will and codicils of the late Estelle Brownrigg contained a gift of a portion of the residue of her estate to a charity named as the ‘Nelson Mandela Educational Fund, South Africa’. Despite an extensive search, nothing could be found to suggest that any charity with that name had ever existed. The sole executor of her estate petitioned for directions from the court as to whether the petitioner as executor could distribute a portion of the deceased’s residual estate to the Nelson Mandela Children’s Fund, on the basis that the fact that no charity with the specified name had ever existed suggested that the inclusion of that name in the will had been an error, and that extrinsic evidence was therefore admissible to determine the intended legatee, the identity of which could legitimately be determined with reasonable rather than absolute certainty. The will also included a provision allowing the executors, where a legatee had changed name, been amalgamated or transferred its assets to any other body, or had been wrongly designed (ie wrongly designated), ‘to give effect to such legacy as if it had been made to such body with similar purposes as my executors may in their sole discretion decide’. In the alternative, therefore, the executor sought permission to exercise that power, confirmation that all the conditions precedent to its exercise had been satisfied, and that the Nelson Mandela Children’s Fund was a ‘body with similar purposes’.
Held:
The court declined to give directions for the distribution of the funds to the Nelson Mandela Children’s Fund or for the exercise of the power to make a distribution to a body with similar purposes. As to any distribution to the Nelson Mandela Children’s Fund, these were matters concerning the administration of the executry estate and fell to be to be resolved by the exercise of the executor’s managerial discretion and good judgement. The court did not consider that it should adjudicate or give advice on the matter. In these circumstances, the discretionary power to give the legacy to a ‘body with similar purposes’ did not arise. Even if it did, the various questions posed in this context again raised matters of management of the estate, to be resolved by the executor. The expenses of the petition would be awarded to the petitioner, who had not acted unreasonably and had raised the petition on advice from counsel.
JUDGMENT LORD MENZIES: Introduction and factual background [1] The petitioner is the sole executor under the will and codicils of the estate of the late Estelle Brownrigg, who was born in South Africa in 1945 and lived and was educated there during her teenage years. She later moved to work as a pharmacist in London, …Continue reading "Petition by Vindex Trustees Ltd [2021] WTLR 1437"