When does ‘continuing to exist’ not require continued existence? When you’re reading a Will referring to unincorporated charities, apparently.…

A change in circumstances after a Will has been written can create real problems with a charity legacy. The case involving the charity British Camelids and several other animal welfare organisations – which was heard in the High Court in 2025 – is a good example. It illustrates the problems that can arise – and how the court chose to deal with them.

In her Will, dated 1994, the testatrix specified that her residuary estate – which was substantial – would be divided between “such of the following that exist at the date of my death” and went on to list six animal welfare organisations, including five charities. By the time she died in 2022:

  • Three of the charities, which were structured as unincorporated charities, had been wound up, and replaced with successor corporate charities.
  • In two of those cases, the gift had been made for a specific named campaign, which was no longer being carried out.
  • One of the charities, an unincorporated charitable trust, had been wound up and not replaced.

Were those charities still in existence, even though they had been wound up? And if not, what would happen to their gifts?

This is what the court was asked to decide. And it decided that none of the gifts failed – even though one of the charities had been fully wound up and didn’t have a successor. In the court’s view, when describing the unincorporated charities, the testatrix had been referring to the charity’s purposes not the organisation or campaign itself. And those purposes did still exist – the gift will only fail if those charitable purposes themselves have ceased to exist or be capable of implementation by anyone else.

Where the charities had been restructured, their corporate successor was carrying out their purposes, so would take their gift. Where a campaign had folded, the successor charity running the campaign could take the gift anyway – because it was still pursing the purposes of the campaign – i.e. carrying out the same work, albeit under different branding. And where the charitable trust had wound up completely, the gift was interpreted as a gift for its purposes – and the judge decided that in this case it would be appropriate to divide the gift between other beneficiary charities named in the Will.

This sounds like a sensible result. The court took a pragmatic approach to charity restructuring – essentially deciding that if a charity’s work was still being carried out, it didn’t matter that its legal structure had changed. And where a branded campaign has come to an end – a gift can still take effect for the purposes of the campaign.

That’s all very helpful. It will give a measure of reassurance to charities which have restructured since they were left a gift in a supporter’s Will. It will also help where a gift has been left on a restricted basis – for a particular campaign – allowing the charity to benefit even though the campaign has closed, where it’s still doing similar work.

But the case also illustrates that cases are very fact specific and courts can be unpredictable. In another case – the Berry case – back in 2013, a court took the opposite approach to similar wording in a Will. So it’s best to be on the safe side. Charities that are restructuring must think about the possible impact on legacies, and explore whether to register mergers on the Charity Commission’s register of mergers to protect legacies, or even to keep a shell charity in existence. Charities with legacy income need to protect their position as much as possible.

The court also made some helpful observations about the role of British Camelids, which had brought the case in its role as personal representative. British Camelids was also one of the residuary beneficiaries – and argued before the court that the gifts to some of the other organisations did fail – because they were no longer in existence. If this argument had succeeded, British Camelids would have inherited a much larger share of the estate. Was it wrong to take this line, or should it have taken a more neutral position?

The court accepted that British Camelids didn’t need to remain neutral – it had a dual role as personal representative and beneficiary. Just because British Camelids had raised an argument based on the Berry case – which the court decided didn’t apply here – that didn’t mean that it was acting improperly and unreasonably. This might reassure charities in a similar position.

But the real message here is for legacy fundraisers. While supporters are obviously free to make a gift to charity in any way they wish, a straightforward, unrestricted legacy, drafted in flexible terms which avoid references to campaigns, and contemplates that a charity might restructure will go a long way to keeping these cases out of the court – ensuring that gifts are devoted to charity, and not to the costs of legal proceedings.

If you have any questions on the above, get in touch with our charity legacy team.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.