Inner House declines to direct that trustee of £1.35 million estate can leave part of it to charity with similar name to non-existent one named in will 



Lord Menzies
Lord Menzies

The Inner House of the Court of Session has refused to direct that the sole executor of a late South African woman who left part of her estate to charity can donate it to a charity with a similar name to a non-existent one named in the will.

Vindex Trustees Ltd, the sole executor under the will and codicils of the late Estelle Brownrigg, sought directions under section 6 of the the Court of Session Act 1988 as to what to do with the remaining funds. The deceased had settled in Scotland together with her late husband in 2012.

The petition was heard by Lord Menzies, Lord Malcolm, and Lord Pentland. Appearing for the petitioner was Tosh, advocate.

Similar purpose

The estate of the deceased, who was born in 1945, amounted to approximately £1.35 million. The net residue of her estate was to be split between the Scottish National Party and three different charities. One of these charities was named in her will, which was signed in March 2003, as the “Nelson Mandela Educational Fund, South Africa”, with no further details specified in either the will or the codicils. The charity was to receive one sixth of the residual estate.

Following a consultation with the solicitors who prepared the deceased’s and its own research, the petitioner was unable to find any further information relating to a charity under that name. The closest match they could find that was a registered organisation at the time the will was signed was the “Nelson Mandela Children’s Fund”, registered as a charity in South Africa in February 1999.

In the petitioner’s view, the NMCF was likely the intended recipient of the deceased’s legacy. It therefore sought directions from the court as to whether it could properly distribute the relevant portion of the deceased’s residual estate to the NMCF. It was acknowledged that another provision of the deceased’s will declared that if any legatee had changed name or been amalgamated with another body, then the legacy was to be given “to such body with similar purposes as my executors may in their sole discretion decide”.

It was submitted for the petitioner that in light of the fact that no information available to it suggested that the NMEF ever existed, the legatee had been wrongly designated in the will. Legal advice provided to it suggested that in order for them to give the legacy to an alternate body on their own discretion, it was necessary for them to first demonstrate that they were unable to “see through” any erroneous description of the intended legatee in the will. In this case, the Children’s Fund was of a similar purpose to the named beneficiary, allowing the court to direct that it should receive the legacy.

Matter of management

Delivering the opinion of the court, Lord Menzies began by noting: “These are matters concerning the administration of the executry estate and fall to be to be resolved by the exercise of the executor’s managerial discretion and good judgment. The court does not consider that it should adjudicate or give advice on the matter.”

He continued: “However it can be noted that the petitioner has the comfort of knowing that it would be acting in accordance with the views of counsel. He advised that, on the information before him, it seemed that the Children’s Fund was the intended beneficiary, and that if the executor was of the same opinion it could proceed accordingly.”

Lord Menzies concluded: “In these circumstances, and again consistent with counsel’s opinion, the discretionary power granted by Clause 4 of the will to give the legacy to a ‘body with similar purposes’ does not arise. But even if it did, the various questions posed in this context in the written submissions again raise matters of management of the estate.”

For these reasons, the court declined to make directions in terms of the 1988 Act. It was noted that, although the petition was refused, the petitioner had not acted unreasonably in raising the petition on the basis of advice from counsel.

© Scottish Legal News Ltd 2021



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