EWCOP rules that charity beneficiaries must be notified when statutory will is altered

Thursday, 29 February 2024
The England and Wales Court of Protection (EWCOP) has ruled that unidentified charities who were to benefit from a residuary gift in a statutory will must be notified when the will is changed.
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The case was Re P (Statutory Will) (2024 EWCOP 12), in which an application was made for a variation to a statutory will made in 2008 on behalf of a mentally incapacitated man (P). There was no dispute as to the variations themselves, which were suggested by the Official Solicitor acting as P’s litigation friend. However, the Official Solicitor thought that the beneficiaries of the will, essentially P's carers and some charities that were not actually named, ought to be notified. They could therefore make representations to the court. This procedure is set out in paragraph 9 of Practice Direction 9E of the Court of Protection Rules 2017.

However, P's deputy, his brother, urged that these notice requirements were unnecessary. His grounds for this request were largely pragmatic, in that the charities are not identified and that his brother's estate is diminishing through care and living costs. In effect, theratte may be nothing left in the estate by way of residue to satisfy the charitable bequest when he dies. There is in fact a shortfall of about GBP250,000 a year between P's income and his expenses, which was the main reason for changing the statutory will in the first place.

The matter of notifying the carers was resolved by discussion. A common position was reached that there was a compelling reason to dispense with notification to the carers. The will gave them GBP1.6 million between them, so the sums were important. Notifying them might cause discord between them and it was agreed to be in P's best interests not to take any steps likely to disrupt his care.

The dispute over the charities was less tractable. The investment manager of P's assets told the court his estate would be exhausted by the time he reaches the age of 84. The cost of notifying the charitable sector would thus be disproportionate, argued the deputy. Because the charities are not named, the notification would have to be done through the Attorney General, who would then make representations for the charitable interests. P's deputy argued that there are no identified charities to lose out if there is no residuary bequest and the estate should not have to bear the costs of representation by the Attorney General. Reference was also made to P's best interests being to maintain his welfare needs while he is still alive, rather than assuring the interests of those that might hypothetically benefit under the will. It was notable that the deputy has taken care of his brother for 35 years and neither he nor their siblings stood to inherit anything from the will.

However, the EWCOP disagreed. It accepted the Official Solicitor's argument that charity is not a discretionary beneficiary so that under the will the residuary estate will be held on charitable trust, which would be a procedural unfairness. There were no exceptional circumstances justifying the dispensation of service and the fact that charities are not identified now is not unusual in a will, even though they do not fall to be identified until P dies.

'The lack of identification of specific charities does not provide a compelling reason to avoid notification and an opportunity for representation on the diminution of provision to charity', said the court. 'There is an identified and practical mechanism for achieving the same via the [Attorney General]. The fact that to date case law to date has dealt only with identifiable beneficiaries does not preclude this conclusion.'

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