Posted on www.Libbylegal.com on 30th May 2013
Around £2 billion was left to charity in 2009 (Source: Society of Trust and Estate Practitioners) and many charities rely on bequests to stay operational ~ the RNLI receive around half of their income from donations in Wills, and the largest lifeboats are affectionately known as “floating tombstones” in light of this.
Charitable gifts are also an excellent way to make an Estate efficient for Inheritance Tax.
However, despite many people having causes they support in life, only 5-7% of people leave a charitable gift in a Will. Whitehall’s “nudge unit” which monitors and analyses public behaviour has conducted a study which has suggested that if people are reminded about charity this figure rises to 10% and, if asked which charities they support, this figure jumps to 15%.
Charitable bequests are an area ripe for controversy. Most small gifts go unchallenged, but where a very large part of the Estate is left to charity there are frequent challenges. The number of challenges to Wills has risen sharply in recent years, mostly due to high profile cases which have been reported in the media.
Two fairly recent cases of challenges to charitable Wills have been RSPCA v Sharp (2010) and Gill v RSPCA (2009) and both received considerable media attention.
So, what is the best way to leave a charity a gift, and be sure they will get it?
1. Have it written by a professional. First, this way you can be sure that the Will is drafted properly. Second, there are codes of conduct will writers need to follow to ensure that the Testator is of sound mind and is not subject to any undue influence or pressure. If there is a contest the person who drafted the Will, or a representative of the firm if that person is no longer with them, can testify to the Court that these were definitely what the Testator wanted. They can also advise on issues like Trusts.
2. Instruct a professional Executor. Believe it or not, there have been cases where the Executors have dealt with the Probate themselves and simply not sent the charity their gift! Having a professional executor – a lawyer or an accountant, or even someone connected to the charity – will ensure the Estate is distributed according to the Testator’s wishes.
3. Be specific. It’s generally a good idea to work in percentages, rather than saying that you want the “remainder” of the Estate to charity. This is where the RSPCA v Sharp case came unstuck as there was a certain amount of ambiguity in the drafting (whether the Testator’s house was part of the gift to the Sharps or separate)
4. Tell the charity. Maybe even sending them a copy of the Will. Then they can produce the Will if there is any foul play, such as the family destroying the Will and claiming that the Testator died Intestate, so they benefit solely.
5. Discuss it with the family. This was part of the issue in Gill v RSPCA, where the Testator’s daughter was left nothing and the RSPCA got everything. In this case the Claimant won against the Charity because she didn’t know her mother had left her nothing and was able to say that her mother was of unsound mind and was under the influence of her husband, the Claimant’s father. If you feel it is likely there is a dispute it’s important to have discussed it with the potential Beneficiaries so that you can make reference to this in the Will, e.g. “I leave my Estate to X-Charity according to my wishes which I have discussed with my family.”