Wills are ambulatory. The circumstances existing on the death of the will-maker apply. This poses difficulties since most people cannot help but write Wills with “today” in mind.
A recent case in the Supreme Court involved legal effort and expense when circumstances changed even in a situation when the will-maker had tried to accommodate the possibility of change.
The will-maker left money to charity for breast and prostate cancer research. His gift chose a particular trust and stated that if it “ceased to exist” at the time of his death, his executor could choose a similar charity (“cy pres” clause). 8 years before his death, a Judge had found that the trust selected was no longer suitable and had ordered that a new trust be established and the proceeds of the trust be paid into the new trust. The executor was not sure, therefore, if the trust had “ceased to exist” or not. The executor sought judicial advice. The Judge held that in the circumstances of the case the trust had “ceased to exist” and that the executor could pay the gift to the Garvan Institute a charity which agreed to use the money only for breast and prostate cancer.
The case demonstrates the importance of keeping a Will up to date and the need to carefully choose words when drafting a Will.
