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

The principles to be applied in construing the Will are those conveniently set out in Dryden.

I do not consider that the decision in the Berry case assists in the construction of the Will here. That decision was confined to determining that the relevant statutory provision deeming a gift to a transferor charity to take effect as a gift to a transferee does not apply where the trustees had a discretion how to apply a gift to a no-longer existent entity. The executors did not need to run any argument that the gift was one for charitable purposes and should be so applied.

There is no doubt that each of the claimant and the fourth defendant were identified as intended recipients of a share of residue in the Will. Each of them was incorporated at the date of the Will and continued in the same legal form at the date of Mrs Midworth’s death and continues now. In each case the gift is to be construed as to the corporate entity identified in the will. That the fourth defendant is not a charity does not affect that conclusion.

In the case of the other named beneficiaries Ms Carslaw’s essential argument is that by use of the words of gift to “the following that exist at the date of my death” and by inclusion of detailed identifying features about the intended beneficiaries the Will should be construed as indicating that a change of legal form prevents the first to third defendants taking the gifts to the Brooke Hospital for Animals, the Zoo Check Project of the Born Free Foundation or the Libearty Campaign World Society for the Protection of Animals which therefore fail and the gift to the Burstow Wild Life Sanctuary also fails.

So far as concerns the Brooke Hospital for Animals there is no question but that it is identified by the name, address and charity number in existence at the date of the Will. As it was an unincorporated charity, the gift to it is prima facie construed as a gift for its charitable purposes.

Once it is recognised that a gift to an unincorporated charitable entity is to be construed as a gift for the charitable purposes of that entity, the words “the following that exist at the date of my death” must themselves be construed in light of that construction. The gift should therefore not necessarily fail on the original named entity ceasing to exist if the broad charitable purposes of the gift continue. The specificity of detail given to enable identification of the entity to be benefitted cannot displace the prima facie construction unless that detail is a reason to construe the gift as dependent on the named charitable entity being in existence to serve as the instrument for carrying out the relevant charitable purposes.

The work of the Brooke Hospital for Animals and now of the first defendant was and is international in scope and not confined to either its former or current London addresses or by the legal form of the named recipient charity. Reading the gift to the Brooke Hospital for Animals in the context of the Will as a whole I conclude that the reference to ceasing to exist must be construed as referring to the intended charitable purposes ceasing to exist; any other conclusion would thwart Mrs Midworth’s intentions, as they are to be construed, to make a gift for her intended charitable purposes. Since the first defendant is carrying on the charitable purposes of the Brooke Hospital for Animals, I conclude that the Will is to be construed as making a gift of a share of residue to the first defendant.

So far as concerns the Born Free Foundation and the World Society for the Protection of Animals there is no question but that they are identified by address and charity number. In addition in each case a particular project of the entity is identified. I conclude that in these two cases it is clear that Mrs Midworth intended to benefit the particular charitable purposes of the respective projects. Accordingly I conclude that these gifts should be prima facie construed as for the charitable purposes of those projects.

Again these gifts should not necessarily fail on the original named entities ceasing to exist if the broad charitable purposes of the gifts continue.

The work of the Zoo Check Project and the Libearty Campaign and now of the second and third defendants in continuing those projects identified in the will were and are international and not confined to a particular address or location or a particular mode of operation. Reading these gifts in the context of the Will as a whole I conclude that the reference to ceasing to exist must be construed as referring to the intended charitable purposes ceasing to exist. Since the second and third defendants are carrying on the relevant charitable purposes I conclude that the Will is to be construed as making gifts of shares of residue to the second and third defendant for the purposes of the Zoo Check Project and the Libearty Campaign, even though those projects do not have a continuing separate identity within the second and third defendants’ present organisational structure.

The Burstow Wildlife Sanctuary was clearly identified by the words of the Will. Again as a former unincorporated charity the gift to it should prima facie be construed as a gift for its charitable purposes and reading the Will as a whole I conclude that the gift would only fail if those charitable purposes had ceased exist or to be capable of implementation. Those charitable purposes have not ceased to exist or to be capable of implementation and it appears from the evidence that the charitable purposes are ones which are carried on by at least the first, second and third defendants. In those circumstances I consider that it would be appropriate to direct by way of scheme that the share of residue intended for the Burstow Wildlife Sanctuary’s purposes be paid among some, at least, of the parties to the proceedings.

I will hear counsel further on consequential matters including (i) any restrictions that might be appropriate as to the application of second and third defendants’ gifts and (ii) the identity of those appropriate to benefit from the application of the Burstow Wildlife Sanctuary’s share of residue by way of scheme.