It is not unusual for a person to want to leave a substantial gift to one or more of their favourite charities in a Will. However, should you wish to do so, care should be taken to ensure that your intentions can be carried out or that your gift will not lead to legal disputes later.
One problem that can arise is where there is an inadequate description in the Will of the name of the charity. In the recent case of Application of Paul James Edwards: Estate of the late John McGregor Edwards [2023] NSWSC 714 a gift of the residual estate to the Aboriginal Children’s Medical Research Trust failed as such a trust never existed.
This is not uncommon and the uncertainty can be easily avoided by identifying the charity with precision in the Will after making all necessary enquiries.
Another significant issue is where the Will maker leaves such a large portion of the estate to a charity that family members may feel aggrieved after the Will maker’s death if they consider adequate provision was not made for them. In such a case, the Will might be challenged and the estate will incur considerable expense defending the claim and there will be significant delay in the distribution of the estate. The Court has the power to revoke the gift or substantially reduce it.
In the circumstances, legal advice should always be sought before deciding on a charitable gift despite the most noble of intentions!
August 2023