William John Dryden v Lorna Young & Ors

The court was asked, in Part 8 proceedings, to determine the true construction of seven residuary gifts in the will dated 26 May 2016 of Marjorie Robinson Thompson. The judge applied ordinary principles of construction as adapted to wills (including the effect of s.21 of the Administration of Justice Act 1982), considered whether each description identified an existing legal entity at the date of the will or a charitable purpose to be applied cy-près, and construed clause 13 of the will as prospective (affecting only changes after execution).

On that basis the judge held that each of the seven contested gifts was capable of taking effect and identified the intended recipients: the "Animal Defence Society" gift was to be treated as a gift to the Animal Defence Trust (or, in the alternative, applied cy-près to it); the "Animal Health Trust" gift was to the Royal Charter company known as Animal Health Trust (with practical consequences if it is in liquidation or dissolved); the "Society for Promotion of Nature Reserves" was identified as The Royal Society for Wildlife Trusts; the Donkey Sanctuary description was held to benefit the Donkey Sanctuary (the body which absorbed the earlier Woodley sanctuary); the Home Rest for Horses was held to be Horseworld Trust; the Heavy Horses Preservation Society was held to be the Shire Horse Society; and the Society for the Preservation of English Countryside was held to be Campaign to Protect Rural England (the active company charity). Clause 13 was construed as applying only to changes occurring after the date of execution.

Background and nature of claim:

• The proceedings were a first instance Part 8 claim to determine the construction of seven residuary gifts in the deceased's 2016 will and to identify the intended charitable recipients, and whether any gifts lapsed, passed on intestacy or should be applied cy-près.

Parties and procedure:

• The claimant is the administrator as attorney of the named executor. Several charities and next of kin were joined; some did not contest the proceedings. Evidence was by written statements and supplementary statements ordered after the hearing. The court sat as a judge of the High Court (Chancery, Property, Trusts & Probate list).

Issues before the court:

1. How to construe the seven residuary gifts in clause 10 of the will and whether each description referred to an existing corporate or unincorporated charity at the date of the will.
2. Where a named charity had changed name, amalgamated, been wound up or otherwise altered, whether the gift survived, passed to a successor, lapsed, or required a cy-près scheme.
3. Whether clause 13 of the will (dealing with change of name, amalgamation or transfer of assets) applied to events before the date of execution or only thereafter.

Court’s reasoning and findings:

• The judge restated the general approach to construction (objective interpretation with allowance for background/surrounding circumstances) and the specific admissibility provided by s.21 Administration of Justice Act 1982 where parts of a will are meaningless or ambiguous, which may permit extrinsic evidence including the testator's intention to be admitted in those limited circumstances.
• The judge reviewed authorities distinguishing gifts to incorporated charities (generally gifts to the corporation beneficially) and gifts to unincorporated charities (generally construed as gifts for charitable purposes and therefore capable of cy-près), and explained the circumstances in which a gift may be treated as dependent upon the continued existence of the named body.
• Clause 13 was construed as prospective only: it applies to specified changes occurring after execution of the will and not to historical changes predating the will.
• Applying these principles and the evidence, each of the seven contested gifts was held to be validly referable to a presently identifiable body or to a successor body carrying on the charitable purposes identified in the will. Where applicable, practical consequences of liquidation/dissolution were noted (for example, the Animal Health Trust if dissolved would give rise to bona vacantia; if in liquidation the payment should be to liquidators).

Remedy/order sought and disposition:

• The court made declarations identifying the correct recipients for each of the seven gifts (see judgment for full list and company/charity registration details) and gave directions as to practical effect; the court invited the parties to agree a form of order to give effect to the judgment, with a timetable for further steps if not agreed.

The judgment contains subsidiary findings on the application of clause 13, the admissibility and limits of s.21 evidence and on the circumstances in which cy-près applies to failed or misdescribed charitable legacies.

This first instance claim to determine the construction of seven residuary gifts is determined. The court held that each contested description in clause 10 of the will identified a valid charitable recipient or a successor body carrying on the relevant charitable purpose: (i) "Animal Defence Society" construed as the Animal Defence Trust (registered charity number 263095) and, in any event, a general charitable intention would support cy-près to that body; (ii) "Animal Health Trust" construed as the Royal Charter company known as Animal Health Trust (charity reg. no. 209642) such that, if it continues to exist the gift is to that corporation (if in liquidation payment to liquidators; if dissolved, bona vacantia consequences); (iii) "Society for Promotion of Nature Reserves" construed as The Royal Society for Wildlife Trusts (charity reg. no. 207238); (iv) the Donkey Sanctuary description construed as benefiting The Donkey Sanctuary (the body carrying on the merged Woodley sanctuary); (v) "Home Rest for Horses" construed as Horseworld Trust (charity reg. no. 1121920); (vi) "Heavy Horses Preservation Society" construed as the Shire Horse Society (charity reg. no. 210619); and (vii) "Society for the Preservation of English Countryside" construed as the Campaign to Protect Rural England (company no. 4302973, charity no. 1089685). Clause 13 was construed to apply only to changes occurring after execution of the will. The court gave ancillary directions and invited the parties to agree a form of order. Rationale: application of ordinary rules of construction of wills (with s.21 AJA 1982 where engaged), distinction between gifts to incorporated and unincorporated bodies, and application of cy-près where a general charitable intention exists or where a successor carries on the charitable purpose.