You are the Judge – a mistake in a will

 

The tenth scenario in our You are the Judge series is regarding a mistake in a will. How important is this, and can the will be executed to its original wishes?

David’s father Robert recently passed away, leaving a substantial amount of money behind.

David has been named as the executor of the will. To his surprise, it contains a term leaving 90% of his estate to "Blenheim Dog’s Home" and only the remainder to David.

Understandably, David is quite upset. He had always expected that he would inherit most of his father’s wealth, particularly their family home, which he will now have to give up.

However, to his excitement, he has discovered that this is no such charity as the Blenheim Dog’s Home. He suspects that his father meant the Bexley Dog’s Home, which is where he bought his much loved Labrador.

Due to the uncertainty, David believes he should be entitled to the whole estate, but Bexley Dog’s Home has recently written to him saying that they expected to be left some money in the will. Who should receive the legacy?

The answer:

Ordinarily, David would be right.

If there is any uncertainty about a clause in a will, even when the correct interpretation seems obvious, the courts shouldn't apply it. This is because the courts aren't permitted to take chances when interpreting wills - they cannot second guess what the person who wrote it meant.

However, in this case, David is unlucky. When a will leaves money to a charity that doesn't exist, the Charity Commission or the High Court can apply the cy-près doctrine. This allows them to follow the spirit of the donation and find a similar charitable organisation to receive the legacy.

Therefore, Bexley Dog’s Home should receive 90% of the estate and David will have to make do with the remainder.

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