Who is responsible for legacies?

Donations to UK charities in the last decade were around £2 billion per annum. A large sum however, when you compare that figure to the ratio of charities in the UK who are bequeathed gifts and legacies via wills then it’s a different story.

Anyone wishing to leave a legacy in their will to a specific charity or organisation would expect that request to be honoured. Unlike other forms of fundraising however, legacy administration has no formal code of practice. Some smaller charities in particular may not have qualified resources or standard operating procedures in place to ensure specific requests are carried out.

The most common reason for contested wills that involve legacies is the perceived failure of the donor to make what the Inheritance Act 1975 calls “reasonable financial provision” for their dependents or children. Does your practice regularly deal with matters involving contested wills? Legacies can lead to disputes for other reasons too. The wildlife charity Royal Society for the Protection of Birds (RSPB), was at the centre of a controversy after considering selling off an eight-hectare plot in Cheshire that was left as a bequest. The donor asked that the land, which is now reportedly worth up to £6 million, never be built on. Do you believe they would have failed the donor by selling the land?

There can be several issues arising and details need to be specific within wills, so that the person bequeathing a legacy should feel safe in the knowledge that once they have passed, their wishes would be fulfilled accordingly. Currently, a letter of wishes can be drawn up to accompany a will. Whereas the contents of a will is legally binding, the contents of a letter of wishes are not. However, a letter of wishes can still be useful in certain circumstances. Do you actively encourage your clients to use such a method?

Should charities do their best to avoid making binding commitments linked to legacies? Expressing the purpose of a legacy as a “wish” or “desire”, consequently leaving the charity with flexibility should their goals or circumstances change in the future, could be a better option. In cases where a specific restriction has been placed on a bequest and a charity cannot meet that request, then an application can be made to the Court of the Charity Commissions for relief under the cy prás doctrine. The cy prás doctrine, however, does have its flaws. It cannot assist when a charity no longer exists, for example or where general charitable intent cannot be shown. Has your practice dealt with such scenario?

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