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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2021] CSIH 46
P378/21
Lord Menzies
Lord Malcolm
Lord Pentland
OPINION OF THE COURT
delivered by LORD MENZIES
in the Petition
by
VINDEX TRUSTEES LIMITED
Petitioner
for
Directions under section 6 of the Court of Session Act 1988
Petitioner: Tosh; Dentons UK and Middle East LLP
3 September 2021
Introduction and factual background
[1]
The petitioner is the sole executor under the will and codicils of the estate of the late
Estelle Brownrigg, who was born in South Africa in 1945 and lived and was educated there
during her teenage years. She later moved to work as a pharmacist in London, where she
met her husband. The couple lived in Johannesburg, Brussels and Canada before ultimately
settling in Scotland in or around 2012. Neither the deceased nor her late husband had any
children. The deceased's estate at the date of her death amounted to
2
approximately £1,349,000. With the exception of a legacy made to a friend, the net residue of
her estate was to be left to the Scottish National Party and three different charities. One of
the three charities was named in the will as the "Nelson Mandela Educational Fund, South
Africa". The petitioner seeks directions from the court, in accordance with section 6(vi) of
the Court of Session Act 1988, on the following question:
"Whether the petitioner, as executor, may properly distribute one sixth of the
deceased's residual estate to the Nelson Mandela Children's Fund, South Africa
21 Eastwold Way, Saxonwold 2196, Gauteng, PO Box 797, Highlands North 2037".
[2]
Intimation and service of the petition was dispensed with and there are no
respondents to the petition.
The Nelson Mandela Educational Fund
[3]
No further details of the charity appear in the will and codicils. The petitioner has
made enquiries with the solicitors who prepared the will; they have advised that their file
had been destroyed. They were unable to provide any information about the charity. The
petitioner has reviewed historic files pertaining to the deceased and her late husband's
executry but has been unable to find any further clarification as to the identity of the
intended beneficiary. It has also undertaken independent research with a view to finding
the correct charity; legal advice has been sought in South Africa but no charity with the
name "the Nelson Mandela Educational Fund" has been identified.
[4]
The South African Register of Non-Profit Organisations shows that when the
deceased signed her will in March 2003, there were three registered organisations whose
names included the words "Nelson Mandela". These were (i) the "Nelson Mandela
Children's Fund" registered on 19 February 1999 ("the Children's Fund"); (ii) the Young
Women's Christian Association (Nelson Mandela Port Elizabeth) registered on
3
12 November 2002; and (iii) the "Nasoda Nelson Mandela Local" registered on
21 February 2003. The Children's Fund is based in South Africa and is and was, at the time
of preparation of the will, the longest established of all the non-profit organisations in
existence bearing the name Nelson Mandela. The purpose of the fund is to educate disabled
children and assist young people in developing skills for work. In the petitioner's view, the
most likely intended object of the legacy was the Children's Fund.
Submissions for the petitioner
[5]
The petitioner moved the court to answer the question posed in the affirmative or to
give such other directions as it considers appropriate.
[6]
There is no information available to the petitioner to suggest that an organisation
known as the Nelson Mandela Educational Fund ever existed. This suggests that the legatee
has been wrongly designed in the will. If the legatee has been wrongly designed, then the
court requires to consider what effect that ought to have on the distribution of the
deceased's estate. The general rule is that erroneous description of the object of a legacy is
not fatal (falsa demonstratio non nocet). Extrinsic evidence is admissible to determine the
identity of the intended legatee as a matter of construction of the will. The identity of the
intended legatee need not be determined with absolute certainty. Reasonable certainty will
suffice (Macfarlane's Trustees v Henderson (1878) 6 R 288, at 289).
[7]
The petitioner acknowledged that the deceased's will includes the following
provision immediately after the bequests of the residue of her estate ("Clause 4"):
"... Declaring that if any legatee has changed name or has amalgamated with or
transferred its assets to any other body or has been wrongly designed then my
executors shall give effect to such legacy as if it had been made to such body with
similar purposes as my executors may in their sole discretion decide."
4
[8]
If the purpose of that clause was to allow the executors to make over the legacy to a
charity with similar purposes, and to avoid unnecessary trouble and expense along with the
risk of any legacy failing, then the petitioner accepts that it may proceed to exercise its
discretion. However, an Opinion produced by counsel previously instructed on behalf of
the petitioner suggests that it may only do so where a "condition precedent" is fulfilled. The
condition precedent is said to be that the petitioner is unable to "see through" the erroneous
description and perceive the true identity of the intended legatee. If that construction is
correct, consideration must be given to whether the petitioner can determine, without
invoking the power conferred on it under Clause 4, that the Children's Fund is the intended
legatee.
[9]
If the court reaches the view that the question upon which directions are sought may
be resolved as a matter of construction of the will and that, on the evidence available, it can
conclude with reasonable certainty that the Children's Fund is the intended legatee, it may
answer the question posed in the affirmative. However, if the court is not so satisfied then it
must consider whether the petitioner is entitled to exercise the discretion conferred upon it
by the declaration, including whether all conditions precedent have been satisfied. If the
court answers that question in the affirmative, the follow-on issue is whether the Children's
Fund is a "body with similar purposes".
[10]
The petitioner acknowledges that if the proper construction of the clause is that the
selection of a substitute legatee is a matter which falls entirely to be determined by it,
exercising its sole discretion, then the court may refuse to answer the question posited and
should instead simply give directions to the effect that the petitioner is entitled to exercise
the discretion conferred by the declaration.
5
[11]
In the petitioner's submission the purposes of the Children's Fund can be said to be
similar to that of the named beneficiary. That is on the basis that the inference may be
drawn from the title of the organisation that the relevant purposes are ones associated with
education in South Africa, which are consistent with the philosophy, values and concerns of
Nelson Mandela. The purposes of the Children's Fund - getting disabled children into
school and helping young people develop skills for work- are sufficiently similar to the
inferred purposes of the Nelson Mandela Educational Fund. As such, the question upon
which directions are sought should be answered in the affirmative.
Decision
[12]
Paragraph 5 of the written submissions states that, in the light of its investigations,
the petitioner has formed the view that the intended beneficiary has been wrongly designed
and that, for the reasons set out in statement 13 of the petition, it is most likely that the
deceased intended to make the legacy in favour of the Nelson Mandela Children's Fund.
The petition seeks the court's approval for a disbursement on this basis.
[13]
These are matters concerning the administration of the executry estate and fall to be
to be resolved by the exercise of the executor's managerial discretion and good judgment.
The court does not consider that it should adjudicate or give advice on the matter, see
Noble's Trustees, Petitioners, 1912 SC 1230.
[14]
However it can be noted that the petitioner has the comfort of knowing that it would
be acting in accordance with the views of counsel. He advised that, on the information
before him, it seemed that the Children's Fund was the intended beneficiary, and that if the
executor was of the same opinion it could proceed accordingly.
6
[15]
In these circumstances, and again consistent with counsel's opinion, the
discretionary power granted by Clause 4 of the will to give the legacy to a "body with
similar purposes" does not arise. But even if it did, the various questions posed in this
context in the written submissions again raise matters of management of the estate.
Disposal
[16]
The court declines to make directions in terms of section 6 of the 1988 Act. The
petition is refused. The expenses of the petition shall be awarded to the petitioner on a
solicitor client, client paying basis. Although we have declined to grant the directions
sought, the petitioner has not acted unreasonably in raising the petition on the basis of
advice from counsel.
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