Do charities have an obligation to fulfil the wishes of testators? Alison Talbot looks at the key issues

Earlier this year, the RSPCA came in for criticism from local residents in Alderley ?Edge following its decision to sell a parcel of land left to the charity by a supporter. The land was left to the charity by the late David Brown following his death in 2007. Mr Brown was described as an animal lover “who spent many hours in his garden watching foxes, badgers and trucks and squirrels on the plot”.

Both family and friends of the deceased claimed that Mr Brown had given the site to the RSPCA so that it could be preserved as a nature sanctuary.

Concern subsequently arose because the land was not preserved as an animal sanctuary and, instead, was sold by the RSPCA. The legacy was not subject to any express conditions that the land must be used as an animal sanctuary and RSPCA’s position was that it sold the property in order to use the sale proceeds to further its charitable objects. However, press coverage at the time highlighted local public fury that the RSPCA had not complied with what they perceived to be Mr Brown’s request. One neighbour complained: “David thought the land was safe – it was his dying wish.”

Formal obligation

The phrase ‘my dying wish‘ commands a certain degree of importance. To the man on the street it suggests something definite and binding, something that everyone should do their best to obey. However, in legal terms, a ‘dying wish’ rarely creates a formal obligation and there are only two circumstances in English law where a ‘dying wish’ can become legally binding. The first of these is where a soldier or ?seaman makes a privileged will and the second is where an individual makes a donatio mortis causa gift ?on their deathbed.

For a gift to become effective upon death it must, under the law of England and Wales, be enshrined in ?a properly executed will, signed in the presence of two witnesses. As all practitioners know, it is common for a testator to set out his or her wishes for the way in which particular gifts will be dealt with in their will. However, the manner in which those wishes ?are incorporated will determine whether or not they are legally binding.

For example, a legacy given upon the express condition that it is used for a particular purpose will only be effective if that condition is fulfilled (subject to a few exceptions). In contrast, a legacy given with a wish that it is used for a particular purpose is simply expressing a wish and the gift is binding whether or not the wish is carried out.

Of course, an expression of wishes does carry some moral weight and it is rare for executors, or the recipient of a legacy, to ignore a testator’s wish in its entirety. Where, therefore, does that leave a charity in receipt of a legacy with a wish attached to it?

With a conditional gift, a charity must, in almost all circumstances, either comply with the condition or forfeit the gift. With a legacy that has a wish attached, such as the wish expressed by the late Mr Brown, the options for a charity are less straightforward.

In practice, almost all charities will try very ?hard, wherever they can, to carry out the wishes of ?a testator, whether it be arranging for a particular ?style of funeral, naming a building after the testator ?or applying the legacy to a particular fund or purpose of the charity.

However, some wishes are more difficult. For example, those that require the charity to undertake a project that is not within its objects or is not the current focus of the charity’s activities. In these cases it may not be possible (or permissible under charity law) to fulfil the wish.

Even more challenging are wishes that the ?charity utilise a property formerly owned by the testator for a particular purpose. Such wishes are not uncommon and examples have included requests that properties are used as homeless sanctuaries, animal sanctuaries, museums and residential accommodation.
Clearly, the testator will have believed that ?these wishes were entirely reasonable and achievable when including them in their will, but the implications for a charity taking on such an undertaking should not be underestimated.

Moral obligation

Therefore, there is no doubt that the moral responsibility to comply with a testator’s wishes is a significant consideration for charities. However, charity trustees have other significant duties and responsibilities in relation to the proper management of their charity and, alongside considering the moral obligation to fulfil a testator’s wishes, a charity must also determine factors such as whether:

• the proposed use of the legacy falls within the charity’s charitable objects;

?• the proposed use is the best use of the charities resources; and

• the charity can afford to dedicate any additional resources in order to carry out or maintain the testator’s wishes. ?

So, what are the alternatives for the charity?

Where a charity determines that it is unable to comply with a testator’s wish it, in theory at least, ?has two options.

1. Decide to accept the legacy without complying with the wish. Where the testator has expressed their request as a wish, rather than a condition, in a professionally drafted will, then this should not be viewed as an unreasonable position. It is likely that the testator will have been advised of the difference between a wish and a binding condition and therefore it is likely that he or she will have made a deliberate choice to include the request as a wish, accepting the risk that the wish may not be carried out.

However, where the wish is included in ?a homemade will, there is less certainty that ?the testator will have understood the legal effect ?of the word ‘wish’. For the charity, the legal position remains the same in both situations, in that there is no legal obligation to comply with the wish and the charity is still entitled to receive the legacy regardless of whether it can comply with the request.

2. The charity can decide to turn down the legacy. This is very unlikely to be in the best interests of the charity and therefore will rarely happen. The only circumstance in which a charity might justify turning down a legacy where it cannot comply with a wish is where it is not in the charity’s best interests to accept it. This might arise, for example, where there is overwhelming evidence that the testator intended to create a binding obligation rather than a wish and, as such, the negative publicity from accepting the gift would outweigh any benefit from it. However, these circumstances are not likely to arise in relation to a professionally drafted will and will be relatively uncommon even in relation to homemade wills.

Public outcry

The reality is that under the current legal system in England and Wales, a charity’s trustees would have to have an exceptional reason for giving up a legacy as a result of being unable to comply with a testator’s wish. As demonstrated by the public outcry in Alderley Edge, this is not a position that is widely appreciated by the general public and there is, perhaps, a need for more information to be available in this area.

Nonetheless, a testator does ultimately have power to control the way in which their charitable legacy is used. Where the testator has an absolute requirement that the legacy is used in a particular way then they should ensure that the legacy is conditional upon the charity fulfilling the request, with alternative provisions setting out what should happen in the event that the charity is unable/unwilling to comply with the request.

Alternatively, if the testator is sure that they ?would like to benefit a particular charity but have ?a preference as to how it should be used, an expression of wish may well be the most appropriate way to formulate the legacy.

In either situation, it is recommended that the testator or his or her adviser liaises closely with the charity concerned to establish if, and how, the request can be carried out effectively, prior to it being included in their will.

However, there is always a risk that a request that is expressed as a wish will not be carried out. What is unfortunate is that there appears to be a mismatch between the public’s expectation of how a charity should treat a ‘wish’ and the manner in which the law demands that a charity will consider a ‘wish’. While that difference remains, there will inevitably be occasions when individuals object to the decision of ?a charity to accept a legacy without complying with an associated wish, as was seen in Alderley Edge earlier this year.

Alison Talbot is a partner in the charities team at Blake Lapthorn