Where There’s A Will…

John Picton: Liverpool University

It is relatively common for people to leave gifts to charity; 7% of wills contain such a legacy. Rarely the focus of policy discussion, testamentary donation is of considerable importance. The sums involved are large; gifts are often given as a percentage of the deceased’s estate. Normally things go smoothly, so that in the great majority of cases, the executor will distribute the gift without any hitch. Even so, where things go wrong, the law is surprisingly hostile to charity. It might allow gifts that have been expressly dedicated to charity to be passed into private hands.

Where a gift by will fails, it will pass into the donor’s residuary estate. Then in the normal course, it goes to her next-of-kin. That kin will often be a collection of distant relatives: nephews, nieces, and long-lost cousins in far-away countries. Yet the problem of kin receiving unexpected windfalls shouldn’t be over-stated. Only a small number of wills fail, and so the cost to charity is not significant. But symbolism is important, and the best symbolic legal principle must be that the law should operate to benefit charity in all circumstances.

Failure is regularly caused by a particular problem that has perplexed the courts for a period of centuries. A gift might be left to a charitable organisation that has closed down. This common failure is likely to be a result of sad circumstances. Sometimes elderly donors spend long periods of time in care-homes unaware of the fact that a chosen charity no longer exists. In this circumstance, the law is complex. It assesses the intention of the donor and attempts to effect it. It does so by posing a peculiar test: did the donor intend a gift for the general purposes of the charity, or for the particular charity itself? Although it is an oversimplification, the test has sometimes been stated as being whether the gifts was for ‘bricks and mortar’ or for ‘charitable purposes’. If the gift was for purposes it will be applied to another similar charity. If it was for bricks and mortar it will pass to the next-of-kin by default.

There is much wrong with this legal framework. It poses a question that the donor may never have thought about at all. It assumes, at the conceptual level, that donors might consider general charitable purposes (as set out by law) in advance of making a donation. Most importantly, however, it allows gifts to pass to into private hands without there being any clear rationale for doing so. One thing is certain: where a charitable gift fails, the donor did not intend it to pass to her next-of-kin.

Reform might be relatively straightforward to effect. Relatives could be written out of the picture, so that where a gift is left to charity, it stays in charity whatever the donor’s state of mind. So where a gift was found to fail, it could be distributed to a similar charity regardless of the next-of-kin’s claim. All it would take, is political will.


2 thoughts on “Where There’s A Will…

  1. katgall

    In the Australian context, the ‘will’ of the testator has been eroded so much even this sensible solution might come under attack from family maintenance claims… But yes, I agree with a policy of giving to charity. In the context of incorporated associations in Queensland, for example, the statute provides that if an association disbands, its property must devolve to another association with similar purposes. While the context is different (the property was accrued by the efforts of members to serve a particular purpose) the underlying idea of fulfilling that purpose is the same as the charitable bequest. I endorse this solution!


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