Charitable Will-Writing: Avoiding Ambiguity
When a person makes a Will, there should be no room for doubt as to what was intended, whether that relates to the identity of the proposed beneficiary or the amount they receive. A degree of uncertainty in the meaning of words in a Will can particularly affect charities, such as when similarly named charities exist, or when a gift might have been intended for a specific project or purpose.
Where ambiguity arises, the court can decide whether the Will should be rectified (if there has been a mistake), or decide what words in the document mean.
This issue arose in the 2023 case of Pead v Prostate Cancer UK), when the court was asked to consider whether a gift of residue included charities and how the gift of residue should be applied. James McKay’s Will provided at Clauses 4.1 to 4.3 that gifts of money were to be made to his wife’s family members. Clauses 4.4 to 4.8 of the Will provided for gifts to charities, with a mixture of specific purposes and non-specific purposes. Clause 11 of the Will dealt with the residuary estate and stated:
“Subject as above my Trustees shall hold my Residuary Estate upon trust for such of the beneficiaries named in Clauses 4.1 to 4.8 inclusive absolutely as shall survive me and in accordance with the provisions relating to each gift.”
The family argued the gift of residue was not intended for the charities and they sought rectification of the Will as well as clarification of what the wording “in accordance with the provisions relating to each gift” should mean. This could have meant in equal shares, in pro-rated shares or it could have meant for the specific purposes for which the charitable gifts were made.
The Will file indicated inconsistencies between the annotated draft Will, the file note and the final executed Will:
- Manuscript amendment on first draft Will: ’House 25% to Steven +25% Keith of sale proceeds +50% to residue’… ’÷ between all those mentioned in clauses 4.1-4.8’.”
- Solicitor’s attendance note: The Residue is to be divided between those people mention in clauses 4.1 to 4.8 in equal shares.” (emphasis added)
- Term of the Executed Will 03.08.2016: “Subject as above my Trustees shall hold my Residuary Estate upon trust for such of the beneficiaries named in Clauses 4.1 to 4.8 inclusive absolutely as shall survive me and in accordance with the provisions relating to each gift.”
The solicitor responsible for making the manuscript amendments and the file note said that Mr McKay did not use the words “those people” and that she believed Mr McKay failed to that the use of the words “in accordance with the provisions relating to each gift” was allegedly a typing error.
The claim for rectification seeking to substitute the content “4.1 to 4.8” to “4.1 to 4.3” failed because both the attendance note and the annotated draft Will said “4.8.” The Court also found that it was more likely than not that Mr McKay intended his residuary estate to be divided pro rata between all the named beneficiaries, in accordance with the size of the legacies.
This case shows that a straight-forward will can become a protracted dispute involving court proceedings, several hearings, and multiple parties, particularly when different parties might have alternative views of the meaning of words in a Will. Charity trustees and executors faced with ambiguous wills should seek early advice from a specialist in this complex area of law to protect the estate and minimise the burden of costs on charity funds.
