Figures from a leading provider of legacy information to charities, Smee & Ford, have revealed that in the UK in 2018 more than £3 billion was bequeathed to charities in Wills. There are some interesting trends: not only is the figure 50 per cent higher than it was a decade ago, it is the smaller charities who are increasingly becoming the beneficiaries. This follows a number of high-profile scandals involving larger charities – for example, Kids Company in 2015 and Oxfam in 2018.

There is also the negative issue of pressure tactics applied by some of the major charities. For example, in 2015, a 92-year-old poppy seller was found to have committed suicide following an assault of so-called “begging letters” from charities – a practice which has now been criticised by the UK’s fundraising watchdog, the Charity Commission.

Why do testators give to charity in their Wills?

While testamentary freedom is an important part of our society, there are numerous reasons why the rise in charitable Will giving is not unequivocal good news.

Perhaps the single largest factor in the rise of charitable Will giving has been the 2012 law which now means that if a person leaves at least 10 percent of their estate to a charity, they are subject to a reduced Inheritance Tax levy of 36 per cent.

However, when a significant part of an estate goes to a charity it can alienate, embitter and even impoverish family members who might otherwise stand to benefit from a Will, increasing the scope for disappointment and contention.

In fact, contested probate is one of the most supercharged areas of civil law and a rise in charitable inheritance giving is only likely to underline this. More and more charitable Wills are being challenged by family members concerned about their validity, as well as those who are financially dependent seeking to argue that the testator, in making their charitable gift, has failed to ensure adequate financial provision for their needs under the Inheritance (Provision for Family and Dependants) Act 1975, (The Act).

Financial dependency claims

People who were financially dependent on a deceased person may contest a Will under The Act, but to do so they must demonstrate two things: firstly, that they were financially dependent on the deceased; and, secondly, that the deceased’s Will failed to make adequate provision for them. Lastly, any claim under The Act needs to be made within six months of the issue of the Grant of Probate.

Other grounds for challenging a Will

Challenging a Will is not something that should be embarked upon lightly. There are only certain situations in which the process of contested probate can be intimated. These are as follows:

• The Will was not correctly signed and witnessed
• The testator lacked the necessary mental capacity
• The testator did not understand, realise or approve the contents of a Will
• The deceased was subject to undue influence
• The Will is a forgery or is fraudulent

Anyone who believes they have a case, should seek the advice of a solicitor who is experienced in this type of complex claim, so that the merits of their claim can be thoroughly checked.

Charities – welcoming legacies but not legacy disputes

While it can be said that charities are mindful of the fact that a probate dispute and inheritance litigation can cause them significant reputational damage, they are also extremely keen to secure charitable inheritance bequests, so they will seek to carefully manage any situations which might prove contentious or problematic.

In fact, charities seek to maximise these legacies and The Charity Commission provides guidance for trustees on how to initiate or defend contested probate legal action. This includes claims made under the Inheritance (Provision for Family and Dependants) Act 1975, and also claims made in proprietary estoppel (those in which a possible beneficiary claims that a testator made a promise of property to them and that they have acted in good faith in a particular way on the basis that the promise would be made good).

However, such claims can be traumatic for family members who must face up to charities that are obliged to act in their own best interests while also having recourse to powerful legal advice and representation.

The role of the Charity Commission – important principles

Charity Commission guidance lays down some “important principles” for trustees to help them consider whether taking or defending legal action is suitable. The guidance requires trustees to do the following:

• To receive legal advice
• To balance the prospects of success, failure and reputational damage to the charity
• To act proportionately
• To consider whether it is suitable to seek advice or consent from the Charity Commission
• To consider alternative dispute resolution or other legal compromise
• To seek external support when in-house solutions may not be suitable

Legal action presents significant risks to a charity, but the value of a bequest in a Will can often mean that they will take robust action to secure the legacy.

Charity-related contested probate claims for private clients

Passing on wealth to the next generation is an important bedrock of UK family and society; as such, if you have lost out because of a charitable gift, there are possible paths you can take to challenge a Will.

There will be many questions to consider, including whether the Will is valid, whether the deceased had testamentary capacity and, in the case of Inheritance Act claims, how the court considers your needs and resources relative to those of the charity.

To establish whether you might have a valid case, you should contact an experienced probate dispute lawyer who can help you consider and negotiate all the difficult questions.

Oratto can help you make contact with an expert contentious probate solicitor who has experience in litigation similar to your own personal circumstances. Contact us today to talk through your case, so that we can assist you in getting the legal advice and support you need.