News and Insights

Home is where the heart is – not necessarily

A recent Royal Court case has demonstrated the conflict that can arise between the head and the heart when making a charitable gift of Jersey land in a will.

Many local testators want to follow their heart and see their gift used to relieve hardship locally, in their own community.

However, the plain fact is that some of the larger charities based in the UK only have a Jersey branch, not a formally established subsidiary company or incorporated association. The head reasons that as such they do not have the legal status needed to receive ownership of Jersey land.

What to do: follow the heart and make the gift to the Jersey branch or the head and make the gift to the UK parent?

In the case of Representation of C and in the matter of Mr D (Deceased) 23-Feb-2017 the testator Mr D had made his gift of his house to the Jersey branch of his chosen charity. When the time came to sell the land it was unclear if it had capacity to take title and so anything to sell. Happily in this case the UK charity’s group structure included a land owning company keen to step into the shoes of the Jersey branch and receive the gift – in fact having previously been remembered by another Jersey testator it was already the owner of land in Gorey.

The court had to consider whether to amend the provisions of Mr D’s will and change the gift to the Jersey branch into a gift to the UK land owning company. In making his decision to do just that the Deputy Bailiff said:

"In terms of the approach we take to the construction of the will, in our view the primary consideration is to give effect to the intention of the testator which should be ascertained firstly from the language used in the will itself and the circumstances in which it was made (In re Power (1996) J.J. 643).  It is also permissible for us to consider extrinsic evidence in particular in considering whether, for example, a beneficiary has been mis-named (see in Re Wardlaw Milne (1970) J.J. 1539)." 

Moral: when drawing up a will, pay attention to the technicalities of property ownership and the legal form adopted by your chosen local charity. In this case the court came to the rescue of the testator’s intentions but such an outcome cannot always be guaranteed.