RE RECHER’S WILL TRUSTS

As is not uncommon to the bequests of those organised enough to prepare a will, there are times when beneficiaries such as charitable organisations, evolve into larger bodies with differing names at the point of death.

And so, on this occasion the court was required to determine if the nature of the gift was such as to allow application, despite a change of identity on the part of the legatees.

By her will of May 23rd 1957, the deceased Mrs. Recher had expressed in clause 7 that upon the death of her husband, any residual funds were to be placed upon trust for a number of charities including The London and Provincial Anti-Vivisection Society, 76 Victoria Street, London SW1, and distributed in equal shares to those stated.

Upon the death of her husband in 1968, it was discovered that as of January 1st 1956, the London and Provincial Anti-Vivisection Society had become absorbed by The National Anti-Vivisection Society, who operated from 27 Palace Street, London SW1, and that amongst the terms provisional to the amalgamation it read:

“3. (i) On the appointed day every life member of L. & P. shall become an annual member of N.A.V.S. F. . . (v) Subject as aforesaid, every person becoming a member of N.A.V.S. under this provision shall be entitled to all the rights and subject to all the liabilities of the other members of the class to which he belongs.”

Which translated that at the point of Mrs. Recher’s death, all members of the London and Provincial Anti-Vivisection Society were in fact members of The National Anti-Vivisection Society, which itself was no longer a charitable institution but a limited company.

Having been presented to the court under a summons by the acting executor to Mrs. Recher, the point was raised as to whether the apportioned monies were payable to the London and Provisional Anti-Vivisection Society; or, if by virtue of the fact that the recipients had been incorporated into a larger organisation, the gift was now left to fail under common law.

Despite existing arguments to the former, it was explained in Leahy v Attorney-General for New South Wales that:

“A gift can be made to persons (including a corporation) but it cannot be made to a purpose or to an object: so also, a trust may be created for the benefit of persons as cestuis que trust but not for a purpose or object unless the purpose or object be charitable. For a purpose or object cannot sue, but, if it be charitable, the Attorney-General can sue to enforce it.”

Leahy v Attorney-General for New South Wales

Through the terms of the will it was construed by the court that the gift was one for the purposes of the London and Provisional Anti-Vivisection Society and not a limited company; and while there were a number of caveats in favour of passing the gift to the original charity, it was impossible to hold that Mrs. Recher had ever intended to benefit anybody else other than the charity expressed; therefore, the gift was to fail, while the court reminded the parties that:

“[W]here you have a gift to an unidentified institution bearing a name suggesting charitable purposes, particularly if found in the company of a number of gifts to identified charitable institutions, the court may save the unidentified gift by assuming that the testator’s bounty is not directed towards the particular institutions named by him but is directed towards a purpose.”