Wills

Construction - charitable bequest to church charity primarily made for upkeep of church fabric - closure and sale of building before testator's death not invalidating giftIn re Broadbent, decd: CA (Mummery and Arden LJJ and Sumner J): 17 May 2001By a will dated 1987 the testator made a bequest of an equal third share of her residuary estate to the trustees of a named church charity and requested it be used primarily for the upkeep of the fabric of the church.In 1994 the church was sold and the site used for residential purposes.

The trustees maintained the sale proceeds under the terms of a 1913 trust but by the date of the testator's death in 1996 had no plans for constructing a new church building.In proceedings brought by the executor of the will the judge held that the bequest to the church trustees was valid.

The two charities who were the remaining residual beneficiaries appealed.Sonia Proudman QC (instructed by Denton Wilde Sapte) for the residual beneficiaries.

Peter Smith QC and Mark Halliwell (instructed by Hayton Winckley, Kendal) for the church trustees.Held, dismissing the appeal, that the court's duty was to give effect to the testamentary wishes of the testator; that as a general rule the purposes of a named church did not come to an end as a result of its building ceasing to be available; that the closure of the church and its sale did not bring about a failure of the charity established by the 1913 trust deed; that the residual beneficiaries' case that the gift could not take effect because the continued existence and use of the particular building was essential to the validity of the bequest was unacceptable; and that, accordingly, the gift to the trustees of the church was as a matter of construction a valid gift.