"Windfall" seems an inadequate word to describe the reported legacy of £41m to benefit scandal-stricken Oxfam after the deaths of businessman Richard Cousins and immediate family members in an accident last year. Newspapers state that Mr Cousins’ fortune was to be left largely in trust for his two sons, but that his recently altered will included a "common tragedy" clause, providing that, if he and his sons died together, their bequests would pass instead to Oxfam.
Making a will should be a reassuring process, but it is inevitably uncomfortable to contemplate one’s own demise and to imagine potential scenarios. Although certain life events (such as marriage and other changing family circumstances) might prompt a testator to revisit their will, it is not a topic most of us wish to dwell on regularly and therefore the prospect of future-proofing one’s will is attractive. The inclusion of a "common tragedy" clause, a device that provides for the distribution of a testator’s estate in the event that his immediate family dies with him, is one way to achieve this.
Mr Cousins appears to have been properly advised and, however unlikely the possibility of his dying with his sons, his will envisaged that occurrence, rather than risk distribution of a significant part of his estate according to the intestacy rules. The common tragedy of Mr Cousins and his sons dying together activates the clause and, as Mr Cousins evidently desired, benefits Oxfam as the party nominated to receive his sons’ shares.
The likelihood of a family tragedy was historically a more commonly perceived risk when, for example, the lesser availability and efficacy of medical treatment and health and safety standards could lead to disasters such as a fatal family illness, house fire or travel accident.
Accordingly, it was not unusual for wills to contain common tragedy provisions. Changing social and economic circumstances led to a decreased risk of complete family catastrophe and, perhaps accordingly, a corresponding decrease in testamentary provision to cater for such eventualities.
In recent times, though, evidence suggests that testators again appear to favour the inclusion of common tragedy provisions: these are practical, offering certainty and the comfort of peace of mind. Perhaps the trend also reflects our willingness and ability to feed our adventurous spirit with increased foreign travel and dramatic leisure activities, as well as our heightened, 21st-century awareness of external threats posed to our way of life.
Also true of modern life is the disparate nature of many families, where relatives much beyond immediate family might have no connection, geographic or otherwise. In the event that their immediate family is unable to receive their estate, a testator might prefer to benefit a charity whose cause they support, instead of distant relatives they do not know.
Charities should publish legacy information and invite testators to discuss their wishes with them. They might highlight the existence of common tragedy provisions, explain their effect and the advantage of including back-up plans, while always recommending that testators seek independent professional advice.
Charities should also engage with testators as to the way in which any bequest is to be spent: often, a legacy will be for a charity’s general purposes, but a testator might wish to impose binding restrictions or at least indicate wishes regarding his bequest. To future-proof the legacy itself and to ensure that both the testator’s intentions and the needs of the recipient charity are best served, a dialogue with the testator is invaluable.
Testators should also always be encouraged to inform family members of their decisions: death is cruel enough without the increased shock of a testamentary surprise to follow.
Jayne Adams is a partner at the law firm, McCarthy Denning, where she specialises in charity law and governance