Nelson
woman Iris Maude Utterson-Kelso left the balance of her estate to four
charities including the Green Gables rest home operated by Presbyterian
Support. In a wicked twist of fate,
Presbyterian Support sold Green Gables one day before she died.
The Court of Appeal ruled Presbyterian
Support could still claim its legacy. As
a general rule, a specific bequest fails if a named individual beneficiary is
already dead or a named individual organisation no longer exists at the time a
will comes into effect. A will is
ambulatory. It marches along having no
legal effect until the person signing the will dies. Presbyterian Support had sold Green Gables to
a private rest home operator just prior to Mrs Utterson-Kelso’s death. Normally a gift to Presbyterian Support for
the operation of Green Gables would then fail; Presbyterian Suppport no longer
owned Green Gables.
Any gift which might otherwise fail can
be rescued by the courts if the gift was intended for a charitable purpose,
rather than for a specific person or institution. Mrs Utterson-Kelso’s will stated the bequest
was “to be used for the purposes of the Green Gables Home”. When under the control of Presbyterian
Support, Green Gables had provided not only residential care but also outreach
services with home visiting and home care.
The Court of Appeal ruled care of the
elderly is a charitable purpose and the specific bequest to Green Gables could
instead be passed on to Presbyterian Support to benefit elderly in the Nelson
region. The dollar amount of the bequest
was not disclosed.
Presbyterian
Support v. Guardian Trust – Court of Appeal (29.11.16)
17.003