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Wills, Wheels and Automobiles - The Perils of Badly-Drafted Legacies

on Tuesday, 27 April 2021.

The importance of watertight Will drafting to protect charitable legacy income was recently highlighted in a High Court case concerning the construction of the Will of retired professional racing driver, Barrie Williams.

In Knipe v British Racing Drivers' Motor Sport Charity & Others [2020], the Court considered, following the executor's Part 64 application for directions, how to construe the terms of the deceased's Will where legacies had been left to misdescribed charities.

What Did the Will Say?

Barrie Williams made his Will which, after gifts to his mother, his fiancée and a number of other legacies, left his residuary estate to four charities as follows:

  • 50% to the British Racing Drivers Club Benevolent Fund
  • 30% to the British Racing Drivers Club
  • 10% to the RSPCA
  • 10% for the Cancer Research Fund

Ambiguity arose regarding the second and fourth legacies because the Will draftsman had failed to provide the charities' registered charity numbers (RCNs) or to otherwise correctly identify the British Racing Drivers Benevolent Fund and the gift to the Cancer Research Fund. Neither of these institutions actually existed as described in the Will and on the face of it the gifts were invalid.

The Court's Approach

The Court found on the evidence that the first ambiguous gift could be held to apply to the British Racing Drivers' Motor Sport Charity (the first defendant) - a benevolent fund administered by the British Racing Drivers' Club - through Barrie's long-standing affiliation with the organisation and professional connection.

In his Judgement, HHJ Matthews, when addressing the issue of construction of the Will, said:

"given the deceased's professional background, his membership of the club and his long familiarity with its affairs, as well as the absence of any other candidate, I cannot believe that the deceased had any institution in mind as the beneficiary of his bounty . . . apart from the first defendant. The opening words of the phrase "the British Racing Drivers Club Benevolent Fund" link the identity of the intended beneficiary to the second defendant and the first defendant is the only benevolent fund administered by the second defendant. This is the simple case of construing the words in the will in the context in which the deceased used them."

The gift to the Cancer Research Fund was not so clear-cut as Barrie had no strong connection to any particular cancer charity. The Court therefore took a slightly different approach. Whilst there was no such existing registered charity, the Court noted that Cancer Research UK, and the World Cancer Research Fund, who were joined to proceedings as defendants, were both well-known registered charities with the charitable purpose of cancer research. There were also several sub-charities with names affiliated with 'Cancer Research Fund' which existed at the time Barrie drafted his Will but had since ceased to exist at the time of death.

The Court applied the cy-près doctrine and held that the gift was intended for the general charitable purpose of cancer research, as it was considered unlikely that Barrie had a particular cancer charity in mind at the time of making his Will. Therefore, the 10% residuary legacy fell to the executor of Barrie's Will to apply for that purpose.

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Wording is Key

The decision in Knipe provides useful guidance for practitioners where there is no contemporaneous evidence as to the testator's intention - the Will file had been destroyed in this case. Though the Court took a pragmatic approach and considered more contextual evidence to determine the testator's wishes in order to prevent the gifts from failing, it highlights the potential pitfalls of a poorly drafted Will.

Our Charity Legacy Protection Team often find charitable organisations to be misdescribed in Wills, particularly in the case of homemade Wills. It goes without saying that practitioners should pay careful attention to the charitable legacies to ensure not only that the intended beneficiaries are correctly identified in the first instance, but that they are also clearly worded to cater for the amalgamation and/or closure of the intended charity.

The description of the charity will of course depend on its legal structure. For charities registered with the Charity Commission in England and Wales, the RCN is an obvious key element to ensure that a charity is correctly identified. Charities can also take steps to safeguard their legacies and often now provide bespoke wording to be used in Wills to reduce the risk of a legal challenge.

Breaking a Deadlock

In our experience, a Part 64 application for directions is a very useful tool for PRs and one which they should not be dissuaded from making in order to construe the terms of an ambiguous Will. Far better for the PRs to be pro-active, and steer matters to a conclusion, than leave it up to the beneficiaries to try and resolve matters and run the risk of a deadlocked estate.

Consideration must also be given to the costs of an application; who will ultimately bear these? The usual rule, particularly in the case of homemade Wills, is that costs will be borne by the Estate. However that will not always be the case when other factors come into play, for example a beneficiary's unreasonable conduct or negligence on the part of a solicitor. This was seen in the Supreme Court ruling in Marley v Rawlings [2014] WTLR 1511 SC (costs), where the negligent Will drafter's insurers were ordered to pay almost all of the costs of both parties.

If you have any questions on this complex area, please contact Michelle Rose in our Charity Legacy Protection Team on 07929 386108, or complete the form below. Please mention you are a VWV approach member. Michelle can offer guidance on the practical and strategic steps to take to ensure charitable legacies are protected and to assist PRs in resolving any deadlock.

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