Q&As

What are the potential issues to consider where a charity (or its trustees) wishes to vary a bequest received in a Will of an individual who died more than two years previously?

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Published on LexisPSL on 18/10/2019

The following Private Client Q&A provides comprehensive and up to date legal information covering:

  • What are the potential issues to consider where a charity (or its trustees) wishes to vary a bequest received in a Will of an individual who died more than two years previously?
  • Charity law and duty of care
  • Tax treatment of variation outside the two year window

What are the potential issues to consider where a charity (or its trustees) wishes to vary a bequest received in a Will of an individual who died more than two years previously?

Charity law and duty of care

It is not clear from the question how the charity is constituted.

The people who serve on the governing body of a charity are responsible for the general management and control of the administration of the charity. They are commonly referred to as the ‘charity trustees’, but may equally be known as the trustees, directors, board members, governors or committee members.

A charity trustee’s responsibilities are broadly the same whatever they are called. However, the exact legal position will differ depending on whether the charity is incorporated or unincorporated.

The trustees have, and must accept, ultimate responsibility for directing the affairs of a charity, and ensuring it is solvent, well-run and delivering charitable outcomes for the benefit of the public for which it has been set up.

Section 1 of the Trustee Act 2000 (TrA 2000) sets out a statutory duty of care which applies to trustees of charitable trusts when exercising specific powers:

‘Whenever the duty under this subsection applies to a trustee, he must exercise such care and skill as is reasonable in the circumstances, having regard in particular:

a) to any special knowledge or experience that he has or holds himself

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