In the fourth part of our series on contract management pitfalls, we look at the risks arising out of varying the terms of construction contracts.
In the case at hand, Mrs Jackson had chosen to leave her estate between a number of charities, including the Blue Cross, the Royal Society for the Protection of Birds and the Royal Society for the Prevention of Cruelty to Animals. This was to the complete exclusion of her daughter, Mrs Ilott, due in no small part to the estrangement between the two which – crucially – was seen to have predominantly been the fault of Mrs Jackson.
As was mentioned in our July article, these were charities with which the testator had enjoyed no significant connection in her lifetime. Nothing was raised in the course of proceedings to indicate why she might have seen fit to benefit these charities in her Will, other than to avoid anything passing to Mrs Ilott. This is significant when considering the legal framework of Mrs Ilott’s claim – a claim pursuant to the Inheritance (Provision for Family & Dependants) Act 1975 (“the 1975 Act”).
Claims pursuant to the 1975 Act are often said to be “balancing acts”, in that the competing claims to the estate from those beneficiaries entitled to inherit under the Will or the rules governing intestacy are weighed up in comparison against arguments of “disinherited” claimants to the estate, taking into account a huge variety of considerations, including the wishes of the deceased. Anyone making a claim pursuant to the 1975 Act must demonstrate to the Court that it would have been reasonable for the deceased to have made greater provision for them. In turn, when considering the competing claims for the estate, the Court must consider the reasonableness of the dispositions made by the deceased.
So we see in Mrs Jackson’s case one of the key issues – that it was considered unreasonable of her to favour charities with which she had no connection to the detriment of her (albeit estranged) daughter.
Many charity sector readers of this article will have enjoyed long and fruitful relationships with donors who will leave them something in their Will. While this does not in any way mean that a claimant to the estate will not succeed in securing an award from the Court, it does mean that they will be able to argue that the decision made by the deceased to benefit them was reasonable and they may as a consequence be able to preserve some or all of their legacy.
But can charities take any more proactive steps to protect their position? The Institute of Fundraising Code of Legacy Fundraising (“the Code”) comments on the position following the making of a legacy at section 18.4. It states:
After a Legacy Has Been Made
18.4.1 Ongoing Contact with Legators
a) Organisations MUST* respect the wishes of the legator if they want no further marketing communications (which would include any fundraising requests) from the organisation or, wherever possible, if they request a certain level of contact.
b) If a legator or potential legator asks the benefitting organisation to explain to disinherited family members why they are being disinherited, the organisation MUST decline or otherwise only explain why the organisation needs the legacy.
The associated guidance also says that charities should:
- respect, in all cases, the fact that the decision is the potential legator’s and his/hers only
- treat all personal information as strictly confidential, unless explicitly agreed otherwise
- respect the sensitivity of the family and friends of the potential legator
- pay particular attention when communicating with vulnerable people, who could include, but are not limited to, the following: service users and client groups; the terminally ill; bereaved relatives or friends; and people with learning difficulties and/or disabilities
- not denigrate another charity in any way, for example, by talking negatively of another organisation
This clearly makes it a little difficult for a charity to proactively protect the legacy made for them while the testator is still alive, at the very least.
Section 18.4.1(b) of the Code does raise an interesting point, however, which charities may find to be of use. It is quite right that charitable legatees – indeed, any legatees – should be relieved of any obligation or requirement to explain to disenchanted family members why they, the legatee, are to inherit and not the family member. It is not the responsibility of that legatee to take on that difficult duty. This explanation will, however, be a key issue in settling any dispute, hopefully before the Court is even involved.
Charities should not only encourage their supporters to make provision for them in their Wills, but should strongly encourage those supporters to seek independent legal advice at the same time as drawing up those Wills. A good solicitor will make enquiries into the background of their testator client, to establish why they are making the provision that they are and, in the event that any party is excluded who might notionally be expected to benefit, can get to the bottom of the reason for their disinheritance.
Per Ilott v Mitson, it may be that the reason for the disinheritance and the charitable provision could be seen as unreasonable. In this case the solicitor can guide their client accordingly and warn them of the risks inherent in what they are choosing to do.
In the absence of such unreasonableness, however, the explanation for the favouring of charitable beneficiaries – and the explanation for the disinheriting of expectant family members or other persons – can be recorded appropriately, most likely in a Letter of Wishes that will remain confidential and for the eyes of the Executors only, unless it is appropriate to reveal the terms – perhaps to help resolve any potential claim.
Solicitors may also in such cases advise on other measures that their client may wish to consider to benefit the charities to whom they want their estate to pass. Wealthy clients may be in a position to set up a charitable trust in their lifetime. While such lifetime actions are also potentially open to claims – particularly if there are doubts over the mental capacity of the donor, or suggestions that the lifetime actions were taken simply to avoid future claims rather than to actually benefit the charities for reasonable reasons – such a charitable trust would allow the donor to see their money working for good causes while they are alive.
 As an aside, which should always be borne in mind, had Mrs Ilott been a wealthy individual then her claim may have not succeeded. A claim by a child of the deceased pursuant to the 1975 Act also requires that child to demonstrate that they need financial provision for their maintenance.
 Mrs Jackson did leave a Letter of Wishes, although it was of little help. It was found to feature factual inaccuracies, particularly over the reasons for her estrangement from Mrs Ilott, and did not satisfactorily explain why she wanted to leave her estate to charities.
For more information
Contact James Hall.
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