Joan Edwards was obviously one of those kindly but naïve souls who believe that governments do good and are capable, when using their discretion, of making good decisions about the use of other people’s money.
Her will, which left a £520,000 bequest to the UK government, shows her trusting nature – but did she make the intention of her bequest clear? Apparently not since the two governing parties were initially happy to split the money between them and then, within half a day of the bequest being publicised in the Daily Mail, somewhat miserably to hand it back.
But to whom should the money actually go? This seems, in modern American parlance, to be Trust Law 101: uncertainty of intention, risking making the bequest void – which would return it to the Edwards estate for a difficult decision about who the actual final recipient should be.
These are the words Joan used: She left her residual estate (after taxes, expenses, debts and any other bequests) “for whichever government is in office at the date of my death for the government in their absolute discretion to use as they may think fit”.
Now, this may be vague wording that leaves Joan’s intentions unclear. But if we are to take it literally and make one or two logical assumptions, then the money should return to the Government to do the work of Government – not the work of electioneering parties.
It is suggested that the executors may have handed the money to the two parties in power, Conservative and Liberal Democrat, on a proportionate basis after seeking advice from then Treasury solicitor and the Attorney General. The Guardian says: “Lib Dem sources said that the executors of Edwards’s will, who are legally in charge of her estate, had decided to donate to the Conservatives and the Liberal Democrats after consulting the Treasury solicitor and attorney general’s office.”
If this is true it would seem to be far from abiding by the terms of the will, which says clearly that the decision is for “Government”, not the Attorney General nor the Treasury solicitor – one of whom may be seen as a member of Government, the other of whom has an advisory role, neither of whom are the Government itself. Nor, prima facie, should the executors have made the decision – as is also being claimed: “The decision to give the money to the political parties was taken solely by the executors of the will,” according to a Lib Dem spokesperson in the same Guardian article.
The executors’ duty was to hand power over the money to the Government, not split it between parties of government at their discretion. Some suggestion has been made that they had oral evidence that Joan intended it to go to the party in government (see statement below). But the words of the will do not say “to whichever party is in government” or “to whichever Prime Minister as party leader”. They say “for whichever government is in office at the date of my death”.
The money is for the Government. It would follow that the money is for the Government’s work. This is an assumption, but a reasonable one: that, indeed, Joan did think that governments do good things in the public interest and that’s why she gave it to the Government.
She might have given it to the local vicar and we could reasonably suppose she would have believed he would not go down the pub and pay for the round to end all rounds then jet off to a Caribbean island with the surplus.
No more would she have expected the Government or its individual members to do anything with the money but serve the interests of the nation – which might, of course, involve bombing foreigners as well as boosting the NHS; but that would be “in their absolute discretion”.
So what should have happened to the money is that “the Government” – for which the Cabinet might be a fair proxy – should have been allowed to make a collective decision as to its use. There would have been a certain amount of transparency there. The democratically elected representatives of the people would no doubt have turned it into a good and heartwarming story – not an exemplar of cynicism and self interest as it has become.
Questions should be directed to the executors, Attorney General and Treasury solicitor (if these were indeed the key decision-makers) as to why this was not done. The parties would have been entitled to rely on the executors’ advice to an extent – but if they had seen the will it would have been clear they should have asked a few more questions before deciding not to look this particular gift horse too closely in the mouth.
Further thoughts: The bequest might be analysed as creating a trust with very wide discretion but this throws up classic problems of uncertainty – not just who the trustees are (“the Government” could have a number of definitions: an abstract entity; the Cabinet; all ministers); but also uncertainty as to who the beneficiaries of the trust are who could sue on it. Could “the nation” sue to ensure the nation benefits? Could an individual? No, because the discretion is too wide for a particular beneficiary to be identified.
The bequest has elements of a “mere power of appointment” with “the Government” as the “donees of power”. If this were a general power there would be no enforceable duty on whether to allocate the money, to whom or whether to even bother considering allocation. Helpfully to the Conservative/Lib Dem case the discretion is so wide that “the Government” could give the money to itself, either as individual members or as parties – or give it to anyone else. But to do so “the Government” would still have to exercise the discretion: it is not for the executors to do so, whether on the Attorney General’s advice or not. (The AG has now denied giving advice: see statement below.)
So, if the executors gave the money direct to the parties without allowing “the Government” to exercise its discretion, the executors would have failed to follow the requirements of the will. An oral indication remembered from 12 years previously which in effect contradicts the words of the will, would be unlikely to have any weight in a court of law. There would have to be some other document, incorporated into the will, that would clarify Joan’s meaning.
It would have been easier if the money had simply been left to “help pay off the national debt” or some such formulation. Or if Joan really wanted it to go to the parties she should have simply gifted it to them – with potential inheritance tax relief.
Note: David Cameron has now said this: “I think when you look at the wording of the will it seems to us the intention was more to benefit the nation, so what we’ve done, the Conservative Party has done, with our part of the donation is give it to the Treasury so it can help to pay down the national debt, which I think meets the spirit of what this very generous lady meant.”
Cameron is wrong since he is denying “the Government” the exercise of its discretion regarding the money. It is not his to donate to the Treasury to pay down debt, nor is it the Conservative Party’s to do that. It must be a government decision and an exercise of its discretion under the will. The Prime Minister is not the Government, nor is the Conservative Party or Liberal Democrats.
Solicitors’ statement: “The Will was drafted by a Solicitor at Davis Wood in 2001. At the time of the instructions received from the late Miss Edwards, the Solicitor specifically checked with Miss Edwards about the unusual nature of her proposed bequest and it was confirmed by Miss Edwards at the time of her instructions that her estate was to be left to whichever political party formed the Government at the date of her death.”
Statement from the Attorney General’s Office (in the Lawyer): “The executors of Miss Edwards’ estate contacted the AGO about her bequest but the Attorney provided no advice on this matter. The Treasury Solicitors replied on behalf of the Attorney General’s Office setting out further steps the executors may wish to take to identify the correct recipient of the bequest. It did not, nor could have, advised to whom the bequest should go.”
More on Trust law: Ethical options for the Times