Court rules gift in Will is invalid

Invalid gift in a Will: Our disputed Wills team report on a ‘failed gift’ contained in a Will

A recent case has highlighted how complicated it can be to leave a legacy in a Will to a political party and the importance of seeking specialist legal advice if you wish to do so – as the costs of ligating the matter after your death could significantly reduce the value of your estate.

The dispute

The case of White v Matthys was a claim brought by the solicitor executor to the Will of Joseph Robson deceased, who died leaving a Will dated 29th November 2006.

In that Will Joseph gifted the residue of his estate outside Spain to the British National Party and that residue was valued at £366,000.00. He executed a separate Will in 1995 leaving his Spanish estate to one of his two sons, Jeremy Robson. The Spanish estate was valued at £1,200.00.

After Joseph’s death Jeremy and his brother Simon wrote to the executor, Mr White, saying that they didn’t think the gift to the BNP was valid because Joseph had not been registered on the electoral register in the five years prior to his death and hence was not a permitted donor to a political party under the Political Parties Elections and Referendums Act 2000 (“the 2000 Act”). This meant that the gift in the 1996 Will failed and a partial intestacy arose whereby Jeremy and Simon would benefit equally from their father’s residuary estate under the intestacy rules – i.e. the £366,000.00 would be theirs in equal shares rather than the BNP’s.

In  September 2011 three senior members of the BNP (including Nick Griffin) entered into a Deed of Variation of Joseph’s 2006 Will whereby the gift was assigned to a Settlement Trust which had been set up essentially for the purposes of receiving the residuary gift under Joseph’s Will. The Trust was called the Joseph Robson Will Settlement and the three senior members were initially appointed trustees, though Nick Griffin later stepped down (in November 2012) and his daughter took his place as the third trustee. The Trust was stated to be charitable.

Mr White raised the issue with the Trustees as to whether they were legally entitled to enter into a Deed of Variation like this and it ultimately became necessary for him to seek the Court’s direction on this issue as well as who he should be paying the residuary estate to.

The Court’s decision

The Judge found that Joseph was not a permissible donor because he had not been registered to vote in England in the five years prior to his death and the BNP could not produce evidence that he had been.

The Judge went on to find that the gift was a donation as defined under the 2000 Act and received and accepted by the BNP when they entered into the Deed of Variation, in contravention of the prohibition against such donations by impermissible donors under the 2000 Act.

The consequence of that contravention of the prohibition is that the BNP, and by extension through the Deed of Variation the Trustees of the Settlement Trust, could not enforce payment of the residuary gift by Mr White. The consequence was therefore that the payment should be made to Jeremy and Simon as a partial intestacy of the residuary gift.

Analysis of the outcome

Whilst this is a case which focused on a technical area of the law which wont affect most people, it does highlight the importance of seeking specialist legal advice when drafting your Will so that such issues can be considered by your Solicitor when drafting the Will. This is particularly the case if you have assets in more than one country or wish to make charitable donations in your Will.

The problem which Joseph’s Will caused has led to significant costs being incurred because it appears Mr White was allowed to have his costs of bringing the matter before the Court paid out of the estate. The consequence is that this will eat into the £366,000.00 for Jeremy and Simon and through no fault of their own.

One must wonder whether they will therefore pursue a professional negligence action against the Will writers to recover those costs as losses caused to the estate as a result of the Will writers’ failure to appreciate the invalidity of the gift that Joseph made in his 1996 Will. However, if the Will was written by Joseph himself without a solicitor, then they will have no such remedy and they will be forced to bear those costs as a loss to be deducted from the £366,000.00 residuary estate.

Are you involved in an invalid gift in a Will dispute?

If you wish to challenge a Will or are in dispute concerning an invalid gift in a Will, then please call us on Freephone 0333 888 0409 for a free assessment or send us an email.

Court rules gift in Will is invalid