dying wish
do charities have an obligation to fulfil the wishes of
testators?
A supporter of an animal charity left them some land on his
death. His family and friends claimed that he had given the site to
the charity so that it could be preserved as a nature sanctuary –
it was his dying wish. However, concern arose because the land was
not preserved as an animal sanctuary by the charity and instead was
sold.
To the man on the street the phrase "my dying wish" 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.
For a gift to be effective upon death it must be enshrined in a
properly executed Will. The manner in which the testator's wishes
are incorporated into the Will 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.
In the above case the legacy was not subject to any express
condition that the land must be used as an animal sanctuary.
Instead it was a legacy that had a wish attached.
All charities will try very hard, wherever they can, to carry
out the testator's wishes in applying the legacy to a particular
fund or purpose. However, some wishes are more difficult to comply
with than others, for example, the wish that the charity use a
property formerly owned by the deceased as an animal sanctuary.
Clearly, the testator will have believed that those 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.
There is no doubt that the moral responsibility to comply with
the 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 must also consider other factors such as whether the
proposed use is the best use of the charity's resources. If the
charity decides that it cannot comply with the testator's wishes
then it can turn down the legacy, but this is very unlikely to be
in the best interests of the charity and therefore will rarely
happen. Unfortunately this very difficult situation for the charity
is not widely appreciated by the general public.
When making your Will, you are able to control the way in which
the charitable legacy you make is used. If you have an absolute
requirement that the legacy is used in a particular way then you
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 do so.
Alternatively, if you are sure that you 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 you or your solicitor
liaise closely with the charity to establish if, and how, the
request can be carried out effectively, and include the appropriate
clause wording in your professionally drafted Will.
