Common tragedy clause in a will / charitable legacies

The death of Richard Cousins, a 58-year-old widower who perished in a tragic sea plane accident on New Year’s Eve 2017 along with his two sons, his fiancé and her young daughter, has brought the subject of wills and charitable legacies to the forefront of media and public attention.

Richard Cousins was head of the catering company, Compass and during his lifetime accumulated a multi-million-pound fortune. It has been reported that he had intended to leave most of his wealth in trust for his two sons, but given they sadly died with him, the ‘common tragedy clause’ in his will came into play.

Under the terms of Mr Cousin’s will, given he and his beneficiaries died at the same time or within close proximity of his death, his chosen charity, Oxfam are to be the principal beneficiary of his estate. Without such clause, in the event that all his intended beneficiaries died, his wealth would have been distributed in accordance with the intestacy rules.

It has been reported that Oxfam will receive a legacy of approximately £41m although the exact figure will not be known until the probate has been completed. Two brothers of Mr Cousins will each receive £1m.

It is clear Mr Cousins received sound professional advice at the time he made his will and whilst such unfortunate tragedies are rare, it is nevertheless important for people to consider all eventualities when deciding what they want to happen when they die.

A “common tragedy clause” is precisely that: it provides who should benefit from the estate if there is a common tragedy, i.e. should all the intended beneficiaries die with the testator or within short time of each other. Given that family holidays are quite common, while such an occurrence is still very rare, these tragedies happen. It would be usual for such a clause to name the ultimate beneficiary as a charity or a number of charities.

It is astonishing just how many people still die without having made a will or leaving a will that is years out of date (evidenced by the growing number of challenges under the Inheritance (Provision for Family and Dependants) Act 1975).

It is also rather sad that relatively few people leave charitable legacies in their wills. According to “Legacy Trends 2018” published by Smee & Ford, only 6.1% of the population leave a charitable gift in their will.