One of the first duties of an executor of a Will is to check that the Will is valid – i.e. it has been correctly executed and is the last Will. The next step is to try to identify the beneficiaries of the Will. If there are charitable beneficiaries steps should be taken to correctly identify which charity is intended to benefit.
On the face of it, the above sounds very straightforward, however, this is not always the case. Charities do change names or merge or sometimes have ceased to exist by the time of the testator’s death. Complications can also arise if the Will has been drafted poorly leading to uncertainty about which charity should benefit. If a charity is named in a Will the Will drafter should check the Charity Commission website to ensure that there have been no name changes or mergers and not only recite the correct charity name in full but also quote the charity’s Registered Charity Number – RCN. Charities details can quickly and easily be verified using this link.
If the Will does not make alternative provisions for the above events, and where uncertainty has arisen, what should an executor do?
It is a common misconception that the bequest will immediately fail for uncertainty and therefore fall to form part of the residuary estate. This is not the case. The executor in this circumstance must act carefully and with due diligence to mitigate becoming personally liable for incorrectly administering that bequest.
In the first instance the executor must try to establish what the deceased’s intentions were. If there was a clear intention to benefit a charitable cause and that intention was important to the deceased then the executor should consider the doctrine of cy-près. This doctrine allows the redirection of the intended bequest to a similar charity to the one specified in the Will rather than letting the bequest fail.
The executor, however, should still be careful not to take matters fully into their own hands. They should consult the Charity Commission in the first circumstance.
In certain scenarios the Charity Commission will not be able to intervene and it may be necessary for the executors to apply to the courts or the Attorney General for a direction under the Royal Sign Manual.
In order to safeguard their personal liability, executors would be wise to seek professional advice from a specialist probate solicitor if the above circumstance has arisen.
