Leaving money to a charity in a Will – Why it is important to get expert legal advice

Leaving money to a charity in a Will – Why it is important to get expert legal advice

Leaving money to a charity in a Will is a wonderful way in which to assist future generations. To ensure that your charitable intentions are carried out you need to obtain expert legal advice when on the drafting of your Will.

There are two main issues that can arise when money is left to a charity in a Will and the deceased did not receive expert legal advice on the drafting of their Will.

The first issue arises when the charity to which the money is left is no longer in existence. This issue arose in the recent Supreme Court case of Application of Sachs [2012] NSWSC 1410 where the deceased had left half of his net Estate to a New South Wales based children’s charity. The charity had later been wound up voluntarily and its assets transferred to the national organisation of the charity. The Executors of the deceased’s Estate had to apply to the Court for an order in relation to the payment of the money to the national organisation. The Court directed the Executors to make payment to the national organisation on the basis that the deceased had a general charitable intention and would have directed the gift to be paid to the national organisation instead. Without obtaining this direction from the Court the charitable gift would have lapsed.

The second issue that can arise when money is left to a charity in a Will is, the Will being subject to a family provision claim. A family provision claim is a claim made under the Succession Act of New South Wales by an eligible person seeking money or a larger amount of money from the deceased Estate. A family provision claim is made on the grounds that the deceased has not adequately provided for the proper maintenance, education and advancement in life of the person making the claim. In circumstances where money is being left to a charity in your Will, it is important to ensure that all other persons in your life who would be eligible to make a family provision claim have been adequately provided for. In the event that they are not provided for, then the reasons for this lack of provision need to be discussed with your expert legal adviser to minimise the risk of a family provision claim being made on your Estate.

If you are leaving money to a charity in your Will, make sure you get expert legal advice to ensure that your gift reaches your chosen charity.

At Heckenberg Lawyers we don’t take our clients’ confidence for granted: we work hard to earn it by providing an efficient, cost effective service which puts your interests first and doesn’t cut corners. We take pride in achieving repeat custom and winning clients by word of mouth recommendation.

If you need advice about a Will or an Estate matter please call 02 9221 2779 or email info@hecken.com.au to arrange an initial consultation with principal lawyer Graeme Heckenberg at our centrally located Macquarie Street, Sydney office.

See our Will Dispute Lawyer & Contesting Wills page for more information on the Wills & Estates services we provide or contact us for advice specific to your situation.