Landmark case sees Scottish rules modified

A UK charity has received £1.8 million in a landmark legal decision, after winning a contested will case with the specialist help of Legacy Link, part of the Legacy Futures Group.

The complex case started after one half of a couple who were rewriting their wills died during the process. The couple, from Scotland, had mutually decided to leave their money to the chosen charity of whichever person died second, rather than to family. However, only the husband’s will had been updated at the time of his death, with his wife’s still in preparation.

An added complication was that the wife had unfortunately lost capacity. However, understanding the couple’s wishes, and supported by records proving she had previously regularly supported the charity, her husband’s executors were able to create a Deed of Variation to leave his estate to his spouse’s choice of charity. This created conflict with family members who felt the money should go to them, leading to the wife’s will being contested when she then died.

Paul Browne, Head of Legacy Administration at Legacy Link, was the charity’s legacy officer. He explains what happened next:

“There are a lot of risks associated with going to court so I worked with the charity to help them understand why this was something we should and could do. The Board of Trustees very bravely chose to defend and support the executors, providing the indemnity for the legal costs. The case took about 18 months and the court decided in our favour, resulting in the gift of £1.8 million coming to the charity early this month, once the estate had been wound up.”

Landmark legal decision

As well as providing the charity with a significant gift, this was a landmark legal decision in Scotland that led to a modification of the rules. If there has been a prior relationship with the charity, executors are now allowed to make a Deed of Variation to ensure the deceased’s wishes are honoured, something that is still not the case in England. Importantly, Legacy Link also obtained the legal fees back for the charity.

Paul says: “Contested cases come up fairly regularly but this one was exceptional because of the size and the nature of the legal work undertaken. In contested cases, we always look at what is the safest and best route for the charity to take. Going to court was a big decision but it was absolutely the right thing to do in this case. We had good support, a strong understanding of the law, and the circumstances were right.”

Dealing with contested wills

For charities facing a similar situation, Paul shares these tips:

“The first step is to get high quality specialist legal advice from someone with lots of charity experience.

“Good communication with your charity board is also essential to ensure they understand the situation and can make an objective decision based on this advice.

“And remember, fighting contested wills is first and foremost about respecting the deceased's wishes. They took the time to write down what they wanted in their will, so we have a duty to do our level best, within reasonable grounds, to ensure the monies are distributed as they intended.”