Fulfilling your dying wish

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Do charities have an obligation to fulfil the wishes of testators?

A supporter of an animal charity left them some land on his death. His family and friends claimed that he had given the site to the charity so that it could be preserved as a nature sanctuary – it was his dying wish. However, concern arose because the land was not preserved as an animal sanctuary by the charity and instead was sold.

To the man on the street the phrase "my dying wish" suggests something definite and binding, something that everyone should do their best to obey. However, in legal terms, a "dying wish" rarely creates a formal obligation.

For a gift to be effective upon death it must be enshrined in a properly executed Will. The manner in which the testator's wishes are incorporated into the Will will determine whether or not they are legally binding. For example, a legacy given upon the express condition that it is used for a particular purpose will only be effective if that condition is fulfilled (subject to a few exceptions). In contrast, a legacy given with a wish that it is used for a particular purpose is simply expressing a wish and the gift is binding whether or not the wish is carried out.

In the above case, the legacy was not subject to any express condition that the land must be used as an animal sanctuary. Instead, it was a legacy that had a wish attached.

All charities will try very hard, wherever they can, to carry out the testator's wishes in applying the legacy to a particular fund or purpose. However, some wishes are more difficult to comply with than others, for example, the wish that the charity use a property formerly owned by the deceased as an animal sanctuary. Clearly, the testator will have believed that those wishes were entirely reasonable and achievable when including them in their Will, but the implications for a charity taking on such an undertaking should not be underestimated.

There is no doubt that, the moral responsibility to comply with the testator's wishes is a significant consideration for charities. However, charity trustees have other significant duties and responsibilities in relation to the proper management of their charity and must also consider other factors such as whether the proposed use is the best use of the charity's resources. If the charity decides that it cannot comply with the testator's wishes then it can turn down the legacy, but this is very unlikely to be in the best interests of the charity and therefore will rarely happen. Unfortunately this very difficult situation for the charity is not widely appreciated by the general public.

When making your Will, you are able to control the way in which the charitable legacy you make is used. If you have an absolute requirement that the legacy is used in a particular way then you should ensure that the legacy is conditional upon the charity fulfilling the request, with alternative provisions setting out what should happen in the event that the charity is unable/unwilling to do so.

Alternatively, if you are sure that you would like to benefit a particular charity but have a preference as to how it should be used, an expression of wish may well be the most appropriate way to formulate the legacy.

In either situation, it is recommended that you, or your solicitor, liaise closely with the charity to establish if, and how, the request can be carried out effectively, and include the appropriate clause wording in your professionally drafted Will.