Gifts To Charity, Solicitor Error and The Costs Consequences

Private client solicitors routinely draft charitable gifts clauses in their client’s wills, but they are not always as straightforward as you might think.

A simple oversight can lead to an entirely avoidable dispute - and the threat of a negligence claim against the firm.

A recent case1 illustrates how a comparatively minor error on the part of a solicitor can lead to a claim, alleged solicitor negligence and an adverse costs order. It also illustrates how some family members can appear to be a little begrudging of charities benefitting more than a token amount from a parent’s will (even more reason to avoid any hint of uncertainty).

What’s the background?

T gave instructions for his will in 2016, leaving several pecuniary legacies to family members and also to various charities (including Macmillan Cancer Support, Cancer Research UK, and Prostate Cancer UK). He also left his residuary estate to be split between the same beneficiaries.

He died in February 2021; and his stepson sought rectification on the basis that T had not intended to split his residuary estate between family members and the charities. He said the solicitors involved in drafting the will had been negligent.

In a judgment on the substantive issues in March 2023, the judge ruled that the claimant had not proved on balance that an order for rectification should be made. However, he ordered that the will should be construed as dividing the residuary estate between the beneficiaries in shares proportionate to their pecuniary legacies, not (as the will indicated) in equal shares.

The judge has now handed down his judgment on costs.

Solicitors’ failings

One of the directors at the solicitors firm (H) who had met with T said in her witness statement that she had gone through each clause of the draft will and T gave her detailed oral instructions as to the disposition of his estate. As a result of that meeting, there were to be changes in the legacies and the gift of residue (her hand-written notes and typed attendance note referred to the residue being split between the family members and the named charities).

A further will was then prepared and eventually executed to reflect those instructions.

However, H also said the clause (11) contained a typing error and T had intended that the residuary estate be divided between all legatees named (i.e. family and charities) equally. She said she believed that when the deceased signed the will "he assumed that it would be correct and failed to notice the error in the division of residue".

The judge ruled that it was not T’s intention that his residuary estate should be divided equally between the family members and the charities, rather it was to be proportionate to the legacies given to them. This was how the will was to be construed, but the rectification claim itself failed.

Another factor was that the final clause 11 was not discussed with T – even though other issues with the will had been discussed with him.

In the costs ruling, the Deputy Master Teverson commented: "Had such a discussion and review of clause 11 taken place, there would have been an opportunity to confirm that the deceased did indeed wish the charities to share in his residuary estate.”

He added that a competent solicitor would have appreciated the need to confirm T understood what the effect of clause 11 would be; and to ascertain what proportion of his residuary estate T actually intended the charities to receive.

The judge noted that the rectification claim was a reasonable one to bring, even though it failed. However, he did not hold the firm to be completely responsible for the whole problem, rather they had “lost an opportunity” to clarify T’s instructions as to his residuary estate.

The firm (or its insurers) were ordered to pay 60% of all the parties’ costs of the total claim.

What does this mean?

Care at each stage of will drafting is vital. Competent practitioners should take the opportunity to review and explain the final terms of the will to make sure they fully reflect their client’s wishes – and, where necessary, that distributions are in the appropriate shares.

This is another case that could have been avoided, but it is an important lesson in leaving no chance for ambiguities.

1 Pead v Prostate Cancer UK & ors [2023] EWHC 3224 & Pead v Prostate Cancer UK & ors [2023] EWHC 642


Posted on 08.02.24