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

Mr Curry says that the starting point is that a gift to an unincorporated charity is construed as a gift for the purposes of that charity because an unincorporated charity has no legal existence save as a trust for charitable purposes.

He says that exceptionally a gift will be construed as conditional on the continued existence of the entity named in the will and fail because, as a matter of construction, the purpose was confined to that specific entity. For example in Re Ovey (1885) 29 ChD 560 the benefit was construed as for a particular hospital in a particular place. To reach such a conclusion on construction there would need to be material indicating that an otherwise broad charitable purpose was constrained geographically or by manner of application.

Mr Curry’s first submission is that the will identifies the first, second and third defendants as beneficiaries. They have been named (save for changed charity numbers) and there is no doubt about the charities that Mrs Midworth intended to benefit. This is not a case where the words in the will might have referred to a number of similar charities. The references to charity numbers and addresses can, and should, be construed simply as aids to identification rather than of the essence of the gift. The court should therefore conclude that the first, second and third defendants are the charities identified in the will (and in the case of the second and third defendants are charities who continue to carry on the purposes of the Zoo Check and Libearty campaigns).

Mr Curry submits that there is nothing in this will that shows that ‘the continued existence of the donee was essential to the giftt’:

There is nothing in the Will from which the Court can conclude that Mrs Midworth intended the existence of a particular legal form for the entity carrying out her intended charitable purposes was to be of the essence of her gift. The fact that a charity has been identified in clear terms cannot be enough. There must be something to show that the gift was conditional on that charity, if an unincorporated charity, continuing to exist in the form identified in the will.

Mr Curry says that Berry case is of no assistance in the construction of this will. The provisions of the will in Berry were materially different, most significantly in that the executors were given a discretion how to deal with the gifts to charitable beneficiaries who had amalgamated. The decision therewas that where a gift was made to a named institution and that institution had ceased to exist at the date of death there was no gift in the will to that institution for the purpose of s. 75F of the Charities Act 1993. No argument was raised about the gift being one for charitable purposes.

If the first, second and third defendants are correct regarding the construction of the will, the evidence shows that they are carrying on the same charitable purposes as identified in the will. The gifts to the second and third defendants can be made subject to appropriate restrictions as to their application to further the purposes of the Zoo Check and Libearty campaigns.

Regarding the gift to Burstow Wildlife Sanctuary, while that charity no longer operates in its original location or at all, its purposes are certainly being carried out, including by the defendants (although arguably not by the claimant).