One of the many benefits of having a will in place is the reassurance that your estate will be divided in accordance with your wishes. The importance of ensuring clarity in your will cannot be overstated, and the recent case in Scotland's highest court, the Court of Session, underlines this point.

The will in question

The court was approached by the executor of the estate of a Mrs Estelle Brownrigg for help in distributing the estate. Mrs Brownrigg died leaving a will which directed her executor to pay a legacy to a friend, and for the remainder of her estate to be distributed to a political party and 3 charitable organisations.

The charity did not exist

A difficulty arose however when it transpired that one of the charitable organisations named in the will did not in fact exist, and, moreover, that no evidence of an organisation with the name provided in the will could be traced. The organisation named in the will was the ‘Nelson Mandela Educational Fund’. After extensive research and investigation, the executor concluded that, as no organisation of that name could be traced, the intended legatee was the ‘Nelson Mandela Children’s Fund’ (the "NMCF"). That organisation had a similar purpose and was the oldest of the organisations named after Nelson Mandela.

A mistake in the will

The executor concluded that there had been a mistake in the preparation of the Deceased's will, that the NMCF was the intended beneficiary, and sought direction from the court as to whether it could properly make distribution to the ‘Nelson Mandela Children’s Fund’ as the intended legatee under the Deceased's will.

What the court did next

The court however declined to give any direction on how the executor should deal with the mistake in the drafting of the Deceased's will. The court concluded that the issue could be resolved by "…the exercise of the executor's managerial discretion and good judgment" and did not require the court's involvement.

The importance of clarity in your will

Asking the courts to give advice on the administration of an estate can prolong the distribution of the executry process (which can upset grieving family members), and can also be expensive (which can reduce the funds available to distribute to beneficiaries).

Admittedly it is possible to remove the need for the courts to become overly involved in the administration of an estate, and that is achieved by ensuring your will is drafted in clear terms for your executors.

Leaving your estate to an organisation

Clarity can be particularly important when leaving your estate, or part of your estate, to an organisation as shown in this case. Organisations can change their name or registered address many times and it is important to ensure that your will is "future proofed", so that any changes are accounted for in the drafting of your will. One very simple way that this can be achieved is to ensure that the organisation is clearly identified in your will. This should not just be by name, but also by registered address and, crucially, registered number. 

For the purpose of charitable giving in a will, if you are more concerned with supporting organisations with certain charitable purposes than specific organisations (or if the intended beneficiaries cease to exist) that can be accommodated with a general provision highlighting the causes you would wish to benefit from your will. Your will should provide sufficient clarity and certainty that your executors will be in no doubt when dealing with your estate as to which body or individual you wanted to benefit.

It is ultimately the executors’ responsibility to ensure that an estate is administered according to the terms of the deceased’s will. However, to ensure certainty that your wishes will be carried out, being clear is key. Clear instructions and unambiguous drafting ensure that your executors have clear direction as to how to distribute your estate to reflect your wishes.


Kevin Winters