Purely Academic: The rare, gruesome nature of failed charitable gifts by will

Legacies can bring out the worst in people and also provide problems for the sector if a gift is lost, writes John Picton

John Picton
John Picton

Rare legal problems, like rare diseases, can be both gruesome and interesting. They are interesting to those who study them, but gruesome to those who are affected by them. Both my doctoral research and my work turn on just such a problem - failed charitable gifts by will. By far the most common cause of testamentary failure occurs where a gift is left to a charitable organisation but, upon the reading of the will, it is discovered it has closed down.

Failed testamentary gifts to charity are interesting because they throw up a number of difficult conceptual issues for the law to grapple with. Yet they are gruesome where they bring out the worst in people - notably, distant next of kin attempting to get their hands on an unexpected windfall. And they are also gruesome for the charitable sector if a legacy is lost. While the sum total of gifts lost to charity each year is small, it is clearly undesirable in policy terms that any gift should ever be lost.

My research focuses on the what motivates people to make charitable gifts in their wills and grapples with the thorny legal question of whether, in the event of a failure, that motivation can be stretched so as to keep gifts in charity and out of the hands of the next of kin. Over a long period, the courts have developed the view that they might do so; and in many, but not all cases, judges have been prepared to attribute to donors a broad and elastic type of intention, stretchable enough for them to exclude the claims of living relatives.

Although this approach might be criticised for artificiality, it does at least have the effect of keeping gifts in charity. Of course, rather than relying on judges, the obvious way to stop a gift from failing is to plan ahead. If a testamentary donor is well enough to check for potential problems in his or her will, then it is common sense that she should. Similarly, and perhaps most importantly, a well-prepared lawyer should draft the will wisely. Things will be much easier on death if the will provides a back-up plan. Potential testamentary donors should always discuss the issue with their solicitor.

Dr John Picton is a lecturer in law and a member of the Charity Law and Policy Unit at the University of Liverpool

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