PT-2025-000104 - [2025] EWHC 2255 (Ch)

Fecha: 05-Sep-2025

Claimant’s Submissions

Claimant’s Submissions

32.

Ms Carslaw says the language of the Will is plain and the claimant and the fourth defendant are each entitled to 50% of the residuary estate. The residuary gifts are expressly subject to the condition that the named legatees be in existence at the date of Mrs Midworth’s death in order to benefit. The gift is to:

“such of the following as shall exist at the date of my death and if more than one in equal shares”.

33.

Ms Carslaw submits that “the following” refers to the particular donees which Mrs Midworth specified at clauses 6(i) to 6(vi) and even where the named donees are unincorporated associations, it is clear from the wording of the Will that the gift is conditional on the continued existence of the particular donee named in the Will not its purposes:

(i)

the “following” can only refer to donees in existence at the date of the Will. The first to third defendants were not in existence at the date of the Will and so logically cannot be the legatees intended by Mrs Midworth;

(ii)

the condition “for such of the following as shall exist at the date of my death” refers both to incorporated entities (the claimant, the British Union for the Abolition of Vivisection) and unincorporated entities (the other named beneficiaries). The existence condition applies irrespective of the legal structure of the donee;

(iii)

Mrs Midworth specified by reference to name, charity number and some form of address, the particular donee which she wished to benefit. That level of detail indicates that the intended donees were the particular donees named in clauses 6(i) to 6(vi), rather than their purposes;

(iv)

there is a distinction between the institutional mechanism through which the funds of the charity are held and administered and the purposes of the charity. If the gifts were for the charitable purposes of the named charities, the inclusion of the condition “as shall exist at the date of my death” would be meaningless;

(v)

as the Will refers to entities identifiable at the date of the Will, there is no possibility of claiming as “successors” because the legatees which do not comply with the condition are not entitled to the gift and, as made clear in Re Fingers, they are not successors of the relevant named legatees with respect to the share of residue that the named legatees otherwise would have taken.

34.

Ms Carslaw says as to the Brooke Hospital for Animals the gift at clause 6(ii) is to the unincorporated Brooke Hospital for Animals. The first defendant is a different legal entity, with a different charity number, incorporated some years after the date of the Will. Even where the transfer was registered on the register of relevant mergers, this gift falls squarely within the “trap” identified by Berry – the gift does not take effect to the unincorporated named beneficiary because it did not exist.

35.

As to “Zoo Check Project” and “Libearty Campaign”, Ms Carslaw says:

(i)

these donees are identified by reference to charities in existence at the date of the Will, which were then carrying them out. They are explicable only by reference to that specific charity. Each of these charities have ceased to exist, having transferred all their funds to the second or third defendant respectively and were removed from the Charities Register. It follows that the particular donees as referred to in the Will did not continue to exist at the date of the Will.

(ii)

the “Zoo Check Project” and “Libearty Campaign” should be construed as institutional arrangements, rather than their abstract purposes;

(iii)

even if these were construed as gifts for charitable purposes, the gifts should still fail because the specific charitable purposes identified by references to the Zoo Check Project and/or the Libearty Campaign as specified by the Testatrix in the Will no longer exist. The names were descriptive labels to identify particular charitable work, narrower than the general work of the respective charities, which donors would have understood they were supporting and for which their funds were being used.

(iv)

while the second defendant may carry out work targeted at zoos, and the third defendant carries out work for the protection of bears, both charities have abandoned the use of the labels used in the Will to identify the specific charitable work in their marketing literature, fundraising and operations, and funds are no longer held on special trust for the purposes those labels signified.

36.

The Burstow Wildlife Sanctuary has ceased to exist.

37.

The Will was professionally drafted and expressly provides for the present circumstances by giving the residue to “such of the following” that did exist. There was therefore no need for a “saving provision” as in the Berry case providing for circumstances in which the named entities are terminated and their assets transferred elsewhere.

38.

This is not a case where the failure of the gifts leads to a partial intestacy.

39.

To save the gifts would flout Ms Midworth’s objective intention and render pointless the efforts of the Law Commission and the legislature to tackle the widely recognised issues which Berry highlighted.