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

Fecha: 05-Sep-2025

Gifts to named charities

Gifts to named charities

22.

The principles relevant to the construction of gifts to named charities have been considered in a number of authorities and were recently comprehensively reviewed by HHJ Davis-White KC (sitting as a judge of the High Court) in Dryden v Young [2024] WTLR 843. His summary of the relevant principles is set out at paragraph [63] of his judgment, in 9 sub-paragraphs. They may be summarised as follows:

(i)

the starting point is to identify if the gift is to an entity in existence at the date of the will and what that entity is. If there is no such entity or it is unclear which entity is intended the question will be whether the gift evinces a gift to charity which will be applied cy-près by way of scheme;

(ii)

where a specific entity can be identified as the intended recipient of the gift, the starting points is:

(a)

in the case of a gift to an unincorporated charity the gift will be construed as a gift for the charitable purpose for which the charity holds its property, by reference to its constitution, rather than as a gift to the specific charity or a gift dependent on the continued existence of the charity in its then form. This is subject to any contrary intention. This proposition was expressed by Buckley J Re Vernon’s Will Trust [Note] [1972] Ch 300at 303C – F:

“Every bequest to an unincorporated charity by name without more must take effect as a gift for a charitable purpose. No individual or aggregate of individuals could claim to take such a bequest beneficially. If the gift is to be permitted to take effect at all, it must be as a bequest for a purpose, viz., that charitable purpose which the named charity exists to serve. A bequest which is in terms made for a charitable purpose will not fail for lack of a trustee but will be carried into effect either under the Sign Manual or by means of a scheme. A bequest to a named unincorporated charity, however, may on its true interpretation show that the testator's intention to make the gift at all was dependent upon the named charitable organisation being available at the time when the gift takes effect to serve as the instrument for applying the subject matter of the gift to the charitable purpose for which it is by inference given. If so and the named charity ceases to exist in the lifetime of the testator, the gift fails: In re Ovey (1885) 29 Ch.D. 560

and by Goff J in Re FingersWill Trust [1972] 1 Ch 286:

“In the case of an unincorporated body the gift is per se a purpose trust, and provided that the work is still being carried on will have effect given to it by way of scheme notwithstanding the disappearance of the donee in the lifetime of the testator, unless there is something positive to show that the continued existence of the donee was essential to the gift”;

(b)

in the case of a corporate charity the gift will be treated as a gift to the corporate entity and not a gift on trust for charitable purposes, again this is subject to any contrary intention;

(iii)

as each of the passages quoted in (ii)(a) make apparent, particular circumstances may show that on a true construction the gift is dependent on the charitable institution named in the will continuing to exist;

(iv)

particular circumstances may show that on a true construction (ii)(b) does not apply and instead the gift is for the purposes of the incorporated entity;

(v)

where a charitable gift is construed as being within (ii)(a) but where the charitable entity in question:

(a)

has ceased to exist and there is no entity carrying on its purposes; or (b) it has changed its purposes or has ceased to exist in its previous form but the purposes are carried on by it or a new entity which can be regarded as a continuation of the original the gift will be valid.

In case (a) it will be applied cy-près. In case (b) it will be treated as a gift for the purposes carried on by the entity now carrying on the (possibly changed) charitable purposes;

(vi)

where the gift is construed as being within (ii)(b) but the corporate entity has been substantially altered by liquidation, alteration of objects or dissolution then in the first two cases the gift will be valid but in the third (subject to (viii)) the gift will fail;

(vii)

in the case of a gift to an entity which never existed the gift will be administered cy-près if a general charitable intent can be made out and otherwise the gift will pass on intestacy;

(viii)

in the case of failed gifts, where for example the charitable gift is dependent on a particular entity carrying out the charitable purposes or is to a corporate charity that has been dissolved. The issue will then be whether a general charitable intention is made out in which case the gift will be applied cy-près or if it is not the gift will pass on intestacy (or in accordance with a provision in the will dealing with that event). It may be more difficult to identify a general charitable intention where the gift is to an incorporated charity which has ceased to exist;

(ix)

statute has intervened to regulate the application cy-près of property dedicated to charity.

23.

At [93] of Dryden the Judge said this:

“In short, I consider the starting point to be that it is necessary to look in the will for a reason to construe the will as being a gift dependent upon the existence of a named charitable organisation at the time the gift takes effect rather than reasons why the gift is construed as being one for charitable purposes without such limitation.”