HH Judge Davis-White KC has in the recent case of Dryden v Young & Ors [2024] EWHC 1095 (Ch) provided a comprehensive account of the present judicial approach to failed charitable gifting.
Ms Thompson died in April 2020 leaving a will that sought to divide her estate – save for a handful of minor specific and pecuniary legacies – equally amongst fifteen charitable organisations. The Will regretfully contained several errors and irregularities. Whilst some were merely “obvious typing errors” the court was required to determine who was the intended legatee of seven of the fifteen residuary gifts.
The charitable gifts had likely been carried forward from a prior 1970s iteration of the Will. The will draftsman provided written evidence, however “the only assistance that Mr Carney could give was from recollection. He was unable to throw any light on why the residuary gifts were drafted as they were or whom the residuary beneficiaries were intended to be. He confirmed that the Deceased had made a series of wills in similar terms over the years and that the names of the charitable beneficiaries and their addresses were simply carried forward from previous Wills.”
The judge recounted the seemingly uncontroversial general rules of construction:
- From Theobald on Wills “[…] the object of the court is to ascertain the intention of the testator as expressed in their will when it is read as whole in the light of any extrinsic evidence available […]”;
- From Marley v Rawlings [2014] UKSC 2thatthe starting point for construction of charitable gifts is that the general principles of construction applicable to commercial contracts apply to wills;
- From Network Rail Infrastructure Ltd v ABC Electrification Ltd [2020] EWCA Civ 1645 “[…] when interpreting a written contract, the court is concerned to identify the intention of the parties by reference to what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean […].”
The judge noted that section 21 of the Administration of Justice Act 1982 did not apply due to the facts at hand.
The judge identified that the starting point is to construe the words of the gift to identify the donee. If the donee is not readily apparent or no longer exists, then the question will be whether the gift evinces:
- a gift to a charitable trust or unincorporated association where the cy-prés doctrine is applicable;
- a gift to corporate body that continues to exist in a form capable of accepting it;
- a gift to an entity that has never existed made with a charitable intention such the cy-prés doctrine may apply.
By working through this proposed order and applying the cy-prés doctrine, the judge identified the ‘intended’ recipient of the 7 wayward gifts and avoided a partial intestacy of the estate. Dryden v Young acts as a cautionary tale to will draftspersons when relying on previous iterations of gifts. Charities often change their details. Whilst addresses pose less of a problem, even the slightest variation in a charity’s name will typically have followed a corporate restructuring. Whilst these issues can be resolved by judicial interpretation, this necessitates time, expense, and aggravation for grieving families. This can be easily avoided by including the registered charity number of the recipient organisation, and importantly, consulting the charity’s registered details on the charity register whenever charitable gifting is being drafted.