'What's in a name': Misdescribed charities in a will

Posted on
'What's in a name? That which we call a rose, by any other name would smell as sweet"
(Romeo and Juliet – Shakespeare Act 2 Scene 2 line 43-44)

As most lawyers will tell you, gifts to charities in Wills can sometimes be expressed badly.  It is actually quite common for someone who wishes to benefit a particular charity to inadvertently provide the wrong name; mis-spell the name of the charity; use an incorrect address; or even to accidentally indicate a general charitable intention, rather than benefiting a specific organisation. This is more commonly found in a home-made Will, but it can also occur in professionally drafted Wills.

If your organisation is named in a Will, but there is some ambiguity in determining exactly which organisation the testator was seeking to benefit, it is usually for the executor to initially make enquiries to solve this issue. 

Their starting point must be to consider the exact wording used in the Will, as – for example - it is arguable that the use of capital letters (such as ‘I want my estate to be used for Cancer Research’) might indicate that the deceased was naming a specific organisation rather than a general charitable intent 'I want my estate to be used for cancer research'). If, however, this did not resolve the problem (and if there are more than one charities who the testator might have been thinking of), the executor would then need to take matters further (which could include an application to the Charity Commission, or even by seeking directions from the court).

In these circumstances, the first you hear about the bequest may be when you are contacted by the executor of an estate (together with any other organisations which the testator might have intended to benefit), advising you of their dilemma and suggesting that you obtain your own legal advice in seeking to ascertain whether the bequest was indeed intended for your charity.

Alternatively, if it has already been decided that the matter does need to be determined by the court, you will receive notice pursuant to CPR 19.8A (given to all potential beneficiaries under the Will).

Under s21 Administration of Justice Act 1982, the court has the power to interpret a Will by considering not only the wording itself, but also by considering extrinsic evidence, which may be admitted to aid the court in seeking to interpret what was meant where any part of a Will is meaningless; where the language used in any part of the Will is ambiguous on its face; and where evidence, other than evidence of the testator’s intention, shows that the language used in any part of the Will is ambiguous in the light of the surrounding circumstances.

This allows for any extrinsic evidence obtained by the executor (such as evidence from the witnesses to the Will, friends and family, or any notes made by the will draftsman) to be considered. 

This is exactly what happened in the estate of Florence Rosemary Harte deceased [2015] EWHC 2351 (Ch).  In this case, the High Court had to consider what instructions the deceased may have provided to the will draftsman, in order to assess what her true intentions might have been (as her Will appeared to incorrectly name several charities).

In the first instance, as the Will helpfully included some registered charity numbers, this helped the court to construe which organisations Ms Harte actually intended to benefit. The court found that 'Macmillan Cancer Fund' was actually meant to be 'Macmillan Cancer Support', and the gift to 'Guide Dogs for the Deaf' was actually intended for 'Hearing Dogs for Deaf People'.

However, the intention behind two other bequests was less clear. Ms Harte's Will bequeathed part of her estate to 'Newbury Hospital' (although such an organisation did not exist) but, as the relevant clause included an address which actually related to the 'West Berkshire Community Hospital' ('the Hospital'), the court decided that the bequest was indeed intended to benefit the Hospital (particularly as it was found that this organisation was colloquially known in the locality as Newbury Hospital).

Of even more difficulty was the clause which mentioned the West Berkshire Ambulance Hospital (with no address and no registered charity number.

The lack of any obvious identifying information meant that further consideration of the facts was required, and after reviewing the available evidence, it was eventually decided that the intended recipient should be the 'Thames Valley and Chiltern Air Ambulance Trust' (' TVCAAT'). The will-drafter had provided their notes, which had been taken when meeting Ms Harte in respect of preparing her new Will.  These included the words "please add the Air Rescue" and then the words "West Berks area." Hodge J was satisfied that Ms Harte intended to benefit an air rescue or air ambulance service operating the West Berks area, and that the incorrect wording in the Will arose either because the will-drafter either failed to understand the instructions or was guilty of a clerical error when writing down the wrong description.

This case highlights how important it is for practitioners to keep an accurate record of a testator’s intention, as this might be relied upon in the event of an unclear Will. It also demonstrates the lengths to which the executor and the court might need to go to in order to save a charitable bequest.

Establishing intention can be much harder if the testator prepared their own Will (one in eight people still do so). In these circumstances, mistakes can be more likely and therefore it is important that charities are aware that asking the executor to consider obtaining extrinsic information may be crucial in proving the intention behind a charitable gift. More importantly, it could avoid a dispute arising between organisations, which could otherwise potentially deplete the estate for both charitable and non-charitable beneficiaries. 

If your organisation is contacted in such circumstances, the first step should be to request a copy of the Will (or to be advised of the wording of the clause in question), and to also ask for an estimated value of the gift (in the event of an interest in the residue of someone's estate as opposed to a specific cash legacy). The executor's intended course of action may need to be ascertained and, if necessary, you may wish to seek further advice, should the executor's intentions appear to lean away from a bequest benefiting your organisation.