Issue:
When you make a new Will, you may wish to leave a share of your Estate to charity either because you have a close connection to that chosen charity or for the inheritance tax benefits; leaving a gift of 10% or more of the net estate value over the inheritance tax threshold to charity can reduce the rate of inheritance tax payable on your Estate from 40% to 36%.
Where proper instructions are provided to your Solicitor and that Solicitor has correctly noted down your charitable intentions there are often no issues as result of such instruction.
If a disgruntled beneficiary (most likely a family member) has been excluded from the Will or left very little as a result of a gift to charity instead, then a claim may arise under the Inheritance (Provision for Family and Dependants) Act 1975 (“1975 Act”) which will need defending by the charity.
The case of Dryden v Young [2024] EWHC 1095 (Ch) illustrates the importance of ensuring that clear and accurate details are taken of the chosen charity in the Will. In this case, the client made several legacies to charities in their Will but incorrect details such as the addresses and names of the charities were set out in the Will. The Court had to use its powers of interpretation to prevent the gifts in the Will from failing to take effect.
How you can avoid this scenario:
When providing instructions to a Solicitor that you wish to leave a legacy to a charity, it is key to ensure that the Solicitor records the full details of the charity to include, their name, address and charity number (if the charity is a charitable company, you can use details from the register of companies.)
If you believe a family member is likely to bring a claim against your Estate in future by virtue of you having left all or some of your Estate to charity, it is key that you provide instructions to your Solicitor as to exactly why you wish for that chosen charity to inherit.
One of the factors that the Court uses to evaluate the merits of claims brought under the 1975 Act is ‘any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.’ This factor will allow scope for any charity beneficiary defending a claim to include information such as the Deceased’s wishes. If it can be shown in contemporaneous attendance notes of the Solicitor that the Testator had a strong connection with the charity and wished for them to receive a share of the Estate, this can strengthen the charity’s defence against a claim.
If you want to go the extra mile to assist in the administration process in the future, providing your Solicitor with details of the charity’s legacy team can assist greatly, as it means your Executor will have a direct point of contact to liaise with at the point of distribution as opposed to just a charity’s name.
Even further still, in addition to recording your wishes in the Solicitor’s attendance note, you may also wish to produce a letter of wishes and/or a witness statement setting out the exact reasons as to why you have made the legacies in your Will. This can again provide great evidence which can be used by the defending party to a claim under the 1975 Act.
Finally, you may wish to have discussions with your family in your lifetime so that on your passing it is not a shock to the beneficiaries that a charitable legacy has been made, however this is not a legal requirement.
How mfg Solicitors LLP can help:
If you are looking to leave a charitable gift in your Will and want to ensure that you have done all you can to ensure the legacy survives or you have concerns that in the future your Estate may challenged under the Inheritance (Provision for Family and Dependants) Act 1975, please contact the Contentious Probate Team at mfg Solicitors LLP and we can assist in advising the appropriate action to take.
For more information regarding Contentious Probate matters, please contact a member of the Contentious Probate Team on 01562 820181, or email Amelia Edwards at amelia.edwards@mfgsolicitors.com.
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