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Decision: KKL Executor and Trustee Company Ltd and JNF Charitable Trust

The complaint

1.    The complainant raised concerns that KKL Executor and Trustee Company Ltd (KKL) wrongly influenced their late spouse to leave a legacy in 2016 to its parent company, JNF Charitable Trust (JNF - the charity) (registered charity no. 225910). The complainant also raised concerns that the charity do not have appropriate safeguards in place to manage their relationship with KKL.

Throughout this report, we refer to the complainant’s spouse as ‘the testator’, which means a person who has made a will or given a legacy. 

Our role

2.    The Fundraising Regulator is the independent regulator of charitable fundraising in England, Wales and Northern Ireland. Part of our role is to investigate complaints from members of the public about fundraising practice where these cannot be resolved by the fundraising organisations themselves. We do so by considering whether the fundraising organisation has complied with the Code of Fundraising Practice (the code) (1), which outlines the legal requirements and best practice expected of all charitable fundraising organisations across the UK. Where poor fundraising practice is judged to have taken place, we can make recommendations for remedy.

Background information: the relationship between KKL and JNF

3.    KKL’s website states that they are a subsidiary of JNF. The two organisations work from the same address and we note that KKL promote the work that the charity does in their newsletters, website and face-to-face with clients. KKL encourage members of the public to donate and leave legacies to JNF and their website provides wording that people can use to add a legacy to JNF in their will. It states:

“Our expert advice is free of charge […] when you leave a legacy to our parent charity JNF Charitable Trust.”

4.    We reviewed the accounts for KKL on Companies House (2) and the accounts for JNF on the Charity Commission for England and Wales’ website and note that five directors of KKL were also trustees of JNF, including JNF’s chair of trustees. We note that three of these individuals were acting in the same roles for both organisations in 2016. Whilst the other individuals have since changed, their predecessors were also acting as trustees for JNF and directors for KKL at the same time. In addition, we saw that one individual was appointed as a trustee of JNF and a director of KKL on the same day in April 2017. We consider this to be striking given that the two organisations are separate legal entities. Finally, we note that JNF have engaged with us on behalf of KKL when we asked them to provide information to assist our investigation.

Key Facts

5.    The bulk of the material facts in this case are agreed by all parties to the complaint. We received much of the same evidence from both the complainant and those complained about when we asked them to supply information to assist us in our investigation.

Information provided by the complainant 

6.    On 16 January 2019, we received a complaint about JNF and KKL from the complainant’s solicitors on behalf of their client, the complainant. They told us that JNF is a registered charity and that KKL is a subsidiary of the charity, providing a free will writing service in return for donations to JNF.

7.    The complaint’s solicitors told us that in 2017 the complainant commenced legal proceedings against JNF regarding their late spouse’s (the testator’s) will. The complainant raised concerns about the validity of the will on the grounds of the testator’s lack of capacity, want of knowledge, approval and undue influence. The complainant also sought reasonable financial provision from the testator’s estate under the Inheritance (Provision for Family and Dependents) Act 1975 (3). The solicitors told us that in July 2018 a settlement was reached between the complainant, the charity and other relevant parties in respect of both of the complainant’s legal claims.

8.    The complainant’s solicitors told us that, during the course of the legal proceedings, they had raised concerns with the charity’s solicitors regarding the will drafting service provided by KKL. The complainant’s solicitors told us that they never received a substantive response to their concerns and that the complainant had instructed them to make a complaint to the Fundraising Regulator.

9.    The complainant’s solicitors told us that in February 2016 KKL had taken instructions and prepared a will for the testator which contained “an extremely valuable bequest” to the charity. The solicitors said that they believed the circumstances in which the 2016 will was prepared involved multiple breaches of Section 18 of the code (4). They told us that the charity failed to manage a conflict of interests, to keep proper records and to maintain proper oversight of the activities of their subsidiary, which they said presented a serious risk to the reputation of the charity. They said that fundraising methods used to obtain the testator’s legacy to the charity were inappropriate and that the charity’s will writing service constitutes “a significant risk to public trust and confidence”.

10.    The complainant’s solicitors stated that the only donations the testator made to JNF over the years were minimal and were in return for KKL’s services. The solicitors said that the testator did not donate to any other charity associated with the same cause.

11.    The complainant’s solicitors told us that they had written to the charity’s solicitors to request copies of any internal policy the charity had setting out the safeguarding procedures that were in place at the time the testator made their 2016 will. They also queried why the will writer had not advised the testator to obtain independent legal advice when they changed the testator’s will in 2016. They told us that the charity did not respond to these requests.

SmartGiving

12.    The complainant’s solicitors said that KKL also operate a charitable giving service whereby clients can open accounts with them to make donations to charities of their choice. The terms of service state that any income tax reclaimed on donations and any interest made on money held is given to JNF. This service was originally operated by a different subsidiary company of JNF called KKL Charity Accounts Ltd, which charged a fee for its services. In 2013 KKL Charity Accounts Ltd started trading as SmartGiving and now provides an online charitable giving service.

13.    The complainant’s solicitors told us that the testator opened a charitable giving account with KKL Charity Accounts Ltd sometime during the 1950s, initially with a donation of £50. Thereafter, the testator would transfer a sum of money every year to this account. They told us that by the year 2000 the sum they would transfer each year had increased to £750. The solicitors stated that the testator only made donations through KKL Charity Accounts Ltd, and later SmartGiving, in return for services they received from KKL (5). They said the donations the testator made directly to JNF were minimal.

The testator’s previous wills

14.    The complainant’s solicitors told us that on 1 April 1988, following their wedding, the testator made a will that left their estate to their spouse should they survive them, and if they did not, the testator’s estate was to go to a (different) named Jewish charity.

15.    On 8 February 2005, the testator made a new will appointing their spouse (the complainant), the testator’s accountant (witness C), and the testator’s relative (witness B) as their executors and trustees. The testator made various legacies to their friends and family, and left the remainder of their estate to their spouse. If their spouse predeceased them, their estate was to be split equally between five named UK charities (JNF was not one of these).

16.    In January 2009, the testator amended their will and was assisted by a representative at KKL. The complainant’s solicitors told us that this representative suggested that the testator add JNF to their will in addition to the other five charities, and that the testator agreed. The solicitors told us that KKL’s representative advised the testator that inheritance tax would not be due on their death because the amount left to their non-exempt beneficiaries was below the inheritance tax threshold at that time. They advised the testator however, that after the testator’s spouse inherited the estate, upon the death of the testator’s spouse, the spouse’s beneficiaries would be liable to pay inheritance tax. The testator advised KKL’s representative that they had already given their spouse £1 million to meet the inheritance tax due on their estate. The representative advised the testator to seek independent legal advice to avoid any suggestion of undue influence as they were giving a large contribution to a charity that KKL were linked with.

17.    In November 2009, the testator met KKL’s representative to make amendments to their January 2009 will. The testator adjusted the legacy amounts to be left to their family and friends. They increased the legacy donations to the charities already in their will, including JNF.

18.    In May 2011, the testator amended their will to increase the amount of money left to three individuals named in their will. They were advised by KKL’s representative that this increase would result in an inheritance tax liability of £4,400. The testator proceeded with the changes in June 2011.

19.    In January 2015, the testator met with a new representative from KKL, witness A, to discuss a new will, removing their now former accountant (witness C) as executor, and increasing the money left to two individuals and the six charities. The complainant’s solicitors stated that there is no record of witness A advising the testator to obtain independent legal advice. Another employee of KKL prepared the testator’s new will. Upon reviewing the draft will, the testator contacted this employee and asked that two legacies be changed and that their spouse be added as one of the executors. The testator signed the updated will in February 2015.

The testator’s 2016 wills

20.    On 10 February 2016, the testator met with witness A at the testator’s house to prepare a new will. The complainant’s solicitors told us that the testator wished to discuss inheritance tax and make changes to the distributions in their 2015 will. The complainant’s solicitors said the testator told witness A that their estate was valued at approximately £10 million. The complainant’s solicitors told us that witness A’s notes of the meeting stated that witness A told the testator that there would be £250,000 of inheritance tax payable on the testator’s will upon their death, and upon their spouse’s death there would be further, substantial inheritance tax to pay.

21.    The complainant’s solicitors said that witness A’s notes of the meeting stated that the testator had said that they would like to have a more tax efficient will. The testator had suggested that they leave their estate in a life trust to their spouse and, upon the death of the testator’s spouse, the estate would go to a number of charities. The testator had calculated that their spouse would receive about £100,000 in income per year under this trust. The testator said that they were going to speak to their relative (witness B, executor of their estate) about which charities to benefit in their will and arranged to meet with witness A at a later date.

22.    On 18 February 2016, witness A attended the testator’s home again. The complainant’s solicitors told us that there is no note of this meeting. However, on the same day, witness A wrote the testator a letter with their new will enclosed. In the letter, witness A reiterated that the inheritance tax due upon the testator’s death under their 2015 will would be £250,000 and that there would be significantly more tax due upon the death of the testator’s spouse. In their letter, witness A stated that the amendments made on the testator’s new will would be more inheritance tax efficient. In the new will:

  • KKL was appointed as an additional executor to those named in the testator’s 2015 will;
  • two family members had their benefit reduced from £100,000 to £10,000;
  • £20,000 each was left to two armed services charities that had been newly added;
  • £500,000 was left to the testator’s spouse (the complainant); and,
  • the rest of the testator’s estate was to be kept in trust for the remainder of their spouse’s life. Upon the death of the testator’s spouse, the trust assets were to pass to JNF. 

The solicitors told us that there is no evidence that witness A advised the testator to obtain independent legal advice regarding this change to their will.

23.    The complainant’s solicitors told us that on 20 February 2016 the testator wrote a letter to witness A in which they stated that they relied on witness A completely for tax advice, as the testator did not understand it. At the end of February 2016, the testator signed the new will, witnessed by two bank employees. Both the complainant’s solicitors and JNF told us that this will was incorrectly dated 17 February 2016 by the witnesses.

24.    On 6 July 2016, witness A visited the testator at home and added an addendum to their will to leave £20,000 to another charity. The complainant’s solicitors told us that the testator’s accountant at the time, witness C, stated that they suggested this legacy to the testator in June 2016. The solicitors told us that witness C is the current Chair of this charity that was added to the will, and the former treasurer of JNF (6).

25.    On 19 October 2016, witness A visited the testator at home. The complainant’s solicitors told us that there is no note of the meeting. On 27 October 2016, witness A wrote a letter to the testator with an amendment to their will to make the testator’s accountant and the testator’s spouse executors; the testator’s relative was no longer included as an executor. The testator wrote back to witness A stating that their draft amendment had left their relative out as an executor and they wished to have them put back in. Witness A replied with an updated amendment, with the testator’s spouse (the complainant), relative (witness B), and accountant (witness C) as their executors, as well as KKL.

26.    The complainant’s solicitors told us that probate to the 2016 Will was granted to KKL, the testator’s spouse (the complainant), relative (witness B) and accountant (witness C) on 26 September 2017. The testator’s net UK estate was stated as being £19,866,809 (7).

27.    The complainant’s solicitors told us that the relevant tax landscape had not altered between 2009 and 2016 and they considered witness A had volunteered advice as to the tax implications of the testator’s existing will which was “overly simplistic” in order to encourage them to change their will to make a substantial gift to JNF.

28.    The complainant’s solicitors also told us that they considered that witness A did not keep sufficient details of their meetings with the testator which meant that they had breached the Charity Commission for England and Wales’ guidance for legacy fundraising which states that: 

"the solicitor involved must be satisfied that the will reflects the donor's wishes, and that the donor understands what affects their Will will have. This should be recorded in writing."

29.    In addition, the complainant’s solicitors told us that, at the time of drafting their 2016 wills, the testator was “physically and mentally frail”. The solicitors told us that the testator’s physical frailness was evident for everyone to see as they suffered from a physical complaint that meant they were “effectively bent double”. In addition, the solicitors said the testator had extremely poor eyesight and required a magnifying glass as well as glasses to read. The solicitors stated that the testator was also suffering from “an intense and persistent depression” which their family stated altered the testator’s behaviour to them in the last 18 months of the testator’s life. The solicitors stated that the testator’s diminished capacity was demonstrated by: the testator forgetting that they had gifted their spouse £1 million to cover their inheritance tax liability, and that the testator volunteered to witness A that their estate was worth ten million pounds less than it was in fact (see paragraph 20). 

30.    The complainant’s solicitors said that the legacy left to JNF in the testator’s 2016 will exceeded the total legacy income the charity had received the previous year, and as such was a “remarkably large donation” for the charity. The solicitors told us that the testator had only included the charity in their 2009 will because KKL had suggested it to them. They also raised a concern that witness A did not advise the testator to seek independent legal advice despite the “enormous benefit” the charity stood to receive.

Witness A’s statement (provided by both the complainant’s solicitors and JNF)

31.    The complainant’s solicitors provided us with a copy of witness A’s statement with exhibits dated 5 March 2018 used for legal proceedings. Witness A stated that the testator had been a long-standing supporter of JNF and noted that the testator had used KKL Charity Accounts Ltd since the 1950s.

32.    Witness A stated that KKL Charity Accounts Ltd had charged a fee for managing their accounts, and all their profits went to JNF. They said that this arrangement was made clear via KKL Charity Accounts Ltd newsletters, which they stated the testator received. Witness A noted that the testator donated to a number of different charities via KKL Charity Accounts Ltd and later SmartGiving, including JNF. Attached to witness A’s statement were copies of the donations the testator made through SmartGiving, made to several Jewish charities including JNF, in addition to a number of other charities.

33.    Witness A explained that the complainant (the testator’s spouse) had also used the services of KKL, and had been managed by the representative of KKL that had drafted the January 2009 will. When this representative left the company in June 2011, witness A took on the relationship with the complainant. Witness A stated that they met with the complainant about twice a year and that one of the complainant’s parents had also been involved with JNF before their death in 1956.

34.    Witness A stated that they first met the testator in January 2015. Witness A stated they could not recall how they had first come into contact with the testator, but presumed this was arranged or recommended by the complainant. Witness A stated they met with the testator to discuss changes to the testator’s will. However, witness A gave the will to a colleague to take forward as they did not have the capacity in their workload at that time. Witness A noted that this colleague then engaged with the testator regarding further amendments in October 2015.

35.    Witness A said that the testator had signed the amendments to their will with their colleague and the testator contacted the office to ask for someone to come and collect the signed document from their home. Witness A attended the testator’s home on 28 October 2015 to collect the document. Witness A said that they had just returned from Israel and recalled that they spoke with the testator regarding the work that JNF were undertaking there.

36.    Witness A stated that in February 2016 they received a message from their assistant that the testator’s spouse (the complainant) had telephoned to ask witness A to contact the testator as the testator wished to make changes to their will. Witness A made an appointment to visit the testator at their house on 10 February 2016.

37.    Witness A stated that at this meeting they discussed the inheritance tax on the testator’s will and stated that the testator was “able to grasp the tax position quickly”. Witness A stated that the testator had mentioned that they had been a “successful stockbroker and was comfortable with numbers”. Witness A said that the testator had told them at this meeting that the testator’s spouse planned on leaving their estate to their family and friends, and the testator was “conscious” that if their spouse did, 40% of the estate would be spent on inheritance tax. Witness A said that the testator did not want their estate to be spent that way and “would prefer it to go to charity on [their spouse’s] death”. Witness A said that the testator stated that they were going to speak to their relative (witness B) about which charities the testator should include in their will “but that JNF would benefit substantially”.

38.    Witness A said that the testator then informed them of their assets and what the testator expected would be left in their estate upon their death. The testator told witness A that they had a blue ledger that held details of their shareholdings and dividends, but that they did not have it with them to show Witness A. Witness A stated that they recalled the testator’s spouse was in attendance at the meeting. The testator’s spouse had stated that they also had a share portfolio that the testator managed. Witness A stated that they “got the impression from both [the testator] and [their spouse] that [the testator] was well organised in [their] financial affairs”.

39.    Witness A stated that the testator said that their estate would be worth approximately £10 million, and that their home would be worth approximately £3 million. Witness A said that they recalled the testator told them that the testator was deliberately underestimating the value of their estate as they anticipated stock market fluctuations resulting from the EU Referendum. Witness A also recalled that the testator had mentioned that they had a bank account that held a “substantial balance”.

40.    At this meeting, witness A stated that the testator said they wanted their spouse to have sufficient money to look after themselves after the testator’s death. Witness A said that the testator suggested that they give their spouse a life interest in their estate, which the testator estimated would give their spouse a yearly income of at least £100,000. The testator also stated that their spouse had their own money and they had given their spouse £1 million in 2009. Witness A said that the testator’s spouse did not contradict the testator at any point.

41.    Witness A told the testator that they would prepare a new will for the testator to consider. The testator told witness A that they would have their bank witness their signature. Witness A explained to the testator that due to the testator’s age, KKL have a policy to obtain a GP assessment to confirm their capacity. Witness A explained that they did not have concerns themselves regarding the testator’s capacity. The testator provided the name and details of their GP.

42.    Witness A stated that a week after this meeting the testator telephoned them to arrange a meeting at the testator’s house on 18 February 2016. Witness A stated that they could not locate their notes from this meeting, but they did send a letter to the testator following the meeting which summarised what was discussed. Witness A stated that the testator’s spouse was also in attendance throughout this meeting.

43.    Witness A said that at this meeting the testator told them that they had decided not to speak to the testator’s relative (witness B) and decided to give their whole estate to JNF upon the testator’s spouse’s death. Witness A said that the testator told them that the testator wanted to support Israel and “that the work of JNF struck a chord with [them].

44.    Witness A said that the testator told them that they wanted the testator’s spouse and two relatives to be executors of their will, and that they wanted a professional to be appointed to assist their executors. As such, the testator requested that KKL also be appointed as an executor. The testator said that they were “impressed” by KKL’s will writing service and that they also considered that KKL had a good relationship with the testator’s spouse.

45.    In addition, the testator requested changes in legacies left to two family members and requested £20,000 each be left to two armed forces charities. The testator requested that £500,000 be left outright to their spouse and that their spouse would have the benefit of the rest of the testator’s estate for their lifetime. Witness A said that they discussed how the testator’s spouse’s life interest would impact on the testator’s house. Witness A recalled that the testator’s spouse had mentioned they may wish to move after the testator’s death as they would not want to stay in the “big house” on their own. Witness A said that the testator asked if this would be possible and witness A confirmed it would be. Witness A stated that before the meeting ended, the three of them (witness A, the testator and the complainant) had discussed their separate trips to Israel.

46.    Witness A stated that following the meeting they wrote to the testator summarising what they had discussed and enclosing a draft copy of their new will. Witness A also drafted a letter to the testator’s GP asking them to confirm the testator’s capacity to make a will. Witness A stated that they also drafted a letter to the testator asking them to sign an enclosed authorisation form for their GP to disclose their medical details to KKL.

47.    Witness A exhibited a handwritten letter that the testator had sent them dated 20 February 2016, which thanked witness A for attending their house to prepare their will. The letter stated that the testator could not have drafted the will without witness A’s help as they “did not understand the tax side”. Witness A stated that their estate is a vast amount of money and they were glad that KKL would help look after it.

48.    Witness A stated that they had a telephone conversation with the testator on 22 February 2016 in which the testator stated the draft will met with their wishes and requested witness A prepare the final will for them to sign. Witness A said in their statement that they could not find a note of this telephone call but they did reference it in their letter to the testator that day.

49.    Witness A exhibited a copy of the testator’s signed will. Witness A noted the date on the will was 17 February 2019, however, as they did not send the testator the final will until 22 February 2019 they were “confident” that this date was written in error, and believed it was more likely signed on 27 February 2019. Two staff members from the testator’s bank signed as witnesses to the will. Witness A stated they did not have a record of when KKL received the testator’s signed will.

50.    Witness A stated that on 4 March 2016 they received a handwritten letter signed by the testator in which they said that the testator had attended their GP on 3 March 2016. The testator asked witness A to contact their GP directly. Witness A stated that they were in Israel from 6 to 11 March 2016 and, as such, their assistant wrote to the testator in witness A’s name with a copy of the letter they drafted previously regarding GP disclosure (see paragraph 46). The testator signed this authorisation on 10 March 2016. Witness A sent a letter to the testator’s GP, which asked the GP to confirm the testator’s capacity when witness A returned to the office on 15 March 2016. Witness A noted that the letter to the testator’s GP stated “Your patient, [the testator], proposes to make a new will…”. However, by this point the testator had already signed the new will. Witness A stated that they either forgot to update this letter, or they were not aware at this time that the testator had signed their will.

51.    Witness A stated that, as it can take several weeks for GPs to provide letters, they take the view that it is better to get wills signed promptly, rather than wait for the GP’s response, “particularly when the testator is in [their] mid-nineties”. Witness A stated that they received a letter from the testator’s GP dated 31 March 2016, which stated that the “balance of probabilities supports the fact that [the testator] does have testamentary capacity”. The GP letter was attached to witness A’s statement and begins by stating: 

[The testator] informed me that [they propose] to make a new will. [They] made me aware of the extent of the property of which [they are] disposing and that [they] would be leaving [their] property to persons of [their] own choosing.”

52.    Witness A noted they next met with the testator on 6 July 2016 at the testator’s house. Witness A stated they could not locate their notes of this meeting, but that they referred to what was discussed in a letter to the testator the next day. Witness A stated that the testator had wanted to make an amendment to their will to include an additional legacy to another charity that was suggested by their accountant (witness C, see paragraph 24). The testator stated that their accountant had recently saved them £10,000 in tax for which they were very grateful.

53.    Witness A stated that the testator’s spouse was also at this meeting, and after discussing the amendment to the testator’s will the three of them discussed the recent EU Referendum vote and discussed how the couple were going to celebrate their wedding anniversary the next day. Witness A said that they received the testator’s signed will amendment in the post on 25 July 2016. Witness A noted that the testator had included a note that stated, “I do appreciate your speedy work, at my age it is important!”.

54.    Witness A stated they next attended the testator’s house on 27 October 2016. Witness A stated they could not find a record of this meeting, but that they wrote to the testator later that day to confirm what was discussed. Witness A said that the testator had wanted to change their will executors, removing one of their relatives and appointing their accountant in their place. Witness A said that the testator told them that they believed the testator’s accountant and KKL would work well together. Witness A stated that the testator’s spouse was in attendance at this meeting and agreed that they felt comfortable with the testator’s accountant looking after the testator’s affairs.

55.    Witness A sent the will amendment to the testator that same day. The testator wrote back a few days later noting that they had removed both of their relatives as executors and requested that they put one of them (witness B) back in. Witness A made these changes and re-sent the amendment to the testator on 14 November 2016. Witness A stated that they collected the signed amendment from the testator on 22 November 2016 but could not recall staying long.

56.    Witness A stated that they continued to visit the testator and their spouse every three months or so. Witness A stated on 6 December 2016 they received a telephone message from their assistant which stated the testator’s spouse had telephoned to request witness A’s help in finding a carer for the testator as the testator was unwell. Witness A stated as they were away for work their assistant made several enquiries on the testator’s spouse’s behalf. Witness A stated that the testator passed away on 20 January 2017, and that they attended their funeral at the testator’s spouse’s invitation.

Witness B’s statement 

57.    The complainant’s solicitors provided a copy of a witness statement made by witness B (the testator’s relative) dated 20 March 2018. Witness B stated that they had read Witness A’s witness statement (detailed above) and the testator’s 2016 will. Witness B said they were providing a witness statement to support the complainant’s claim disputing the validity of the testator’s will.

58.    Witness B stated that they were “shocked and saddened” by the terms of the testator’s 2016 will. Witness B stated that they found it “very difficult to believe” that the testator would have left their spouse (the complainant) “so little”, leaving the vast majority of their estate to JNF, as the testator had never mentioned the charity to witness B.

59.    Witness B explained that they were related to the testator through the testator’s first marriage. They said they had known the testator for 75 years and would describe their relationship as a close friendship. Witness B stated that they and their spouse spent a lot of time with the testator and the testator’s spouse both in London and on holiday. Witness B said that they would describe the testator and the testator’s spouse’s marriage as “very traditional”, as the testator dealt with their finances and their spouse kept the house.

60.    Witness B stated that they, and their spouse, noticed a decline in the testator’s health in 2015 which continued until the testator’s death. Witness B stated that the testator had chronic back problems which caused their back to bend over. Witness B stated that the testator’s eyesight was also deteriorating which meant they could only read with thick glasses and a magnifying glass. Witness B said that the testator also had diabetes. Witness B stated that by 2016 the testator spent much of the day sleeping in their chair.

61.    Witness B stated that the testator used to be very active and found the deterioration in their health to be frustrating as they had to stop playing golf and driving. Witness B stated this affected the testator’s emotional and mental health. Witness B said the testator “became increasingly irritable, bad-tempered, aggressive and irrational in [their] behaviour towards people”. Witness B stated that they believed that the testator was “deeply depressed, and periodically expressed a desire to end [their] life”. Witness B also stated that the testator started speaking rudely to the testator’s spouse, which was out of character for them. Witness B said that they believed this caused the testator’s spouse to “lose [their] confidence and become somewhat subdued and subordinate”.

62.    In response to witness A’s witness statement, witness B stated that they were “surprised to read” witness A’s statement that the testator was “a long-standing supporter of Israel and the work of Jewish National Fund” as the testator had never expressed an interest in Israel to them. Witness B stated that the testator was not a practising Jew and they had never “showed any interest in Judaism or Jewish charities”.

63.    Witness B said that the testator did speak to them about what charities to leave in their will and they had given the testator a list of charities they thought the testator should include. Witness B noted that the testator left a legacy to two of those charities in their 2016 will. Witness B stated that the testator told them in February 2016 that they were going to leave money to their golf club so was surprised to note that the golf club was not included in the testator’s 2016 will.

64.    Witness B noted that the testator’s spouse was in attendance whenever witness A had a meeting with the testator, but stated that from what witness B knew of the couple, the complainant would have been “side-lined” by the testator during these meetings and they would not have encouraged their spouse to speak during them. Witness B also stated that the complainant would not have “taken on board” what was being discussed.

Witness C’s statement

65.    The complainant’s solicitors provided us with a witness statement from witness C (the testator’s accountant) dated 18 April 2018, provided for the legal proceedings. Witness C stated that they met the testator through a golf club that they were both members of. Witness C said that they started working as the testator’s accountant in January 2015 after the testator contacted them asking for assistance. Witness C stated that they also act as an accountant for the testator’s spouse (the complainant).

66.    Witness C stated that they spoke with the testator about their tax affairs a few times in 2015 and 2016, and at no point did they have any concerns that the testator could not understand their advice. Witness C stated that the testator’s spouse was in attendance every time they met with the testator and that they believed the testator’s spouse usually compiled the tax documents the couple gave them.

67.    Witness C stated that the testator told them in June 2016 that they had prepared their will with KKL and that on their death money was going to UK charities, then upon the death of the testator’s spouse their money would go to Israeli charities. Witness C stated they mentioned they were the Chair of a small charity that worked with Israel and queried whether the testator would consider making a donation to this charity. Witness C said that the testator confirmed that they would be happy to do that.

68.    Witness C said that their records indicated that the last time they saw the testator was on 4 August 2016. Witness C stated that although the testator was physically weaker, their mind was still “sharp” and they had no reason to believe that the testator did not have the capacity to deal with their financial affairs.

The testator’s medical records

69.    The complainant’s solicitors also provided copies of the testator’s medical records from 1991 until their death. These detail a number of physical illnesses but do not refer to the testator’s mental capacity.

Correspondence between JNF and the complainant’s solicitors

70.    The complainant’s solicitors provided copies of correspondence between themselves and the charity’s solicitors between 1 November 2017 and 22 May 2018.

71.    Included was a letter from the complainant’s former solicitors dated 8 December 2017 in which it is stated that while the complainant was in attendance at the meetings between the testator and KKL, they did not partake in the discussions as they were “simply” providing tea and ensuring their spouse was comfortable. The complainant stated that they were not aware what was discussed. They said if they had been, they would have spoken with the testator about the “consequences of [their] actions”.

72.    The letter raised a concern about the testator writing to witness A to thank them for their assistance regarding tax matters in the will which they had not understood (see paragraph 47). The complainant stated that the testator was “financially experienced” and as such any suggestion that they did not understand tax issues should have indicated to witness A “a dramatic loss of mental faculties”. The letter also raised a concern that the letter from the testator’s GP was obtained six weeks after the testator signed their 2016 will and that the GP letter stated that the testator planned on making a new will when they had already done so. They felt this showed the testator’s confusion, calling into question their capacity.

73.    In addition, the letter raised concerns that witness A took the testator’s word regarding how much their estate was worth, rather than undertaking a valuation of their estate. The letter stated that the 2016 will did not sufficiently provide for the complainant and noted from the testator’s previous wills that this was something the testator considered important. They queried how witness A had been satisfied that the testator felt what they were leaving the testator’s spouse was sufficient. The letter also raised a concern that witness A may have deliberately exaggerated the inheritance tax due on the testator’s estate in order for them to change their will to leave a larger legacy to JNF (8).

74.    Also included in the correspondence was a letter from the complainant’s solicitors to JNF’s solicitors regarding witness A’s statement. They said that the complainant disputed that they had a long-standing relationship with JNF, and also queried what relationship their parent had had with the charity. They further stated that the complainant had KKL prepare a will for themselves but that was the total extent of their contact with them (9). JNF’s solicitors responded to this letter stating that they would not provide any further information until the complainant set out their 1975 Inheritance Act claim to them.

Information provided by JNF Charitable Trust

75.    On 5 March 2019, the charity provided us with the same witness statement and supporting exhibits from witness A that the complainant’s solicitors had provided (detailed above).

76.    The charity told us that KKL provide “personal and professional pastoral care”, in addition to their will writing service. They told us that they provide support to the Jewish community by doing things such as making funeral arrangements and arranging for Kadish (10). They told us that home visits are a key part of the way that KKL build long-lasting relationships with clients. The charity told us that KKL are also the first port of call for many clients when they are admitted to hospital or looking for residential care.

77.    The charity told us that KKL is a wholly-owned subsidiary of JNF, although they are separate legal entities. They said that they are always careful to maintain an “appropriate distance” between the two organisations. They said that they work in the same building but on different floors and they do not have access to each other’s systems and records, including physical files and banking systems.

78.    The charity told us that KKL always let their clients know about their connection with JNF by detailing their relationship on KKL’s website, in their marketing materials and by informing clients in initial and subsequent meetings.

79.    The charity told us that KKL have procedures in place to ensure that their will writing clients are making their decisions freely. This includes: 

  • informing clients that they should consider leaving provisions for their loved ones; 
  • staff keeping records of meetings (this can be in the form of an attendance note or a follow-up letter to a client explaining the matters discussed); and, 
  • advising clients to obtain independent legal advice (however, it is up to the client whether they wish to do this). 

The charity told us that KKL also try to observe the “golden rule” wherever possible. This involves obtaining a doctor’s letter confirming capacity for elderly clients. The charity advised us that obtaining this letter is not always possible, as it has to be “balanced with the overriding duty to the client to complete their Will in a timely manner”.

80.    The charity said that KKL do not have formal contracts for their will writing service, and as such there is no formal contract for will writing between KKL and the testator. The charity told us that when potential clients contact KKL regarding the will writing service they conduct an initial ‘no obligation’ meeting to discuss any legacy. They said that there is an expectation that anyone using the will writing service does intend to leave a legacy to JNF, as it is “very rare” for someone to approach them to use the service and not want to do this. However, they said that clients can at any time during the process change their mind and change their will not to include JNF, provided that they have capacity.

81.    The charity told us that there are occasions when an individual does not propose to leave a legacy to JNF, or wants to leave a legacy of £100 or less. The charity stated that as KKL consider themselves part of the Jewish community, providing a pastoral and community service, in these circumstances KKL consider that it is “the right thing to do” to ensure individuals in “straitened” circumstances have access to advice that they might not otherwise have, and so carry out the work without the provision of a legacy donation to JNF.

82.    The charity told us that KKL Charity Accounts Ltd (now known as SmartGiving) is run as a separate entity from KKL. They told us that this company holds accounts for individuals and businesses to make donations to UK registered charities of their choice. The donations can be made from their SmartGiving accounts, either online or by cheque. The charity told us that there is no obligation for users of this service to donate to JNF, and that many users do not.

83.    The charity told us that the testator started using KKL Charity Accounts Ltd in 1950, at which time they used to ask customers to enter into a four year contract pledging to make donations to charities from their account in that time. They stated this was a requirement imposed by Her Majesty’s Revenue and Customs (HMRC) at the time and that the organisation no longer operates in this way.

84.    The charity told us that any member of the public can use SmartGiving and provided a copy of SmartGiving’s Terms and Conditions dated 13 August 2018, which do not mention JNF but state that “any interest earned by SmartGiving is donated to charitable purposes”.

85.    In regards to the complainant’s claim challenging the validity of the testator’s will, the charity pointed out that the complainant had been in attendance during the meetings the testator had had with KKL regarding the testator’s will, and as such would have been aware of their intentions. They noted that the complainant made a claim for financial provision against the will which was mediated and a confidential settlement reached between JNF and the complainant. The charity noted that while a settlement was reached with the complainant regarding the testator’s will, the validity of the will remained unchallenged.

86.    The charity told us that they are committed to fundraising in “an ethical and respectful way” and consider that the charity’s activities, as well as KKL’s, are carried out in this way.

Our findings

87.    We normally require complaints to be put to the organisation before we will consider them. However, in this case, given the issues complained about and the long-standing correspondence between the parties, we did not consider it appropriate to refer the matter to the charity to deal with as a complaint before we got involved. As such, we have not considered JNF’s complaint handling in this case, as we consider that the issues raised in this case were dealt with through a legal dispute and not under the charity’s complaints process.

88.    We also note that the complainant has raised concerns that witness A did not advise their spouse to obtain independent legal advice when they changed the testator’s will in 2016 to make JNF their main beneficiary. As the code does not state that potential donors have to be referred for independent legal advice, KKL did not breach the code in their apparent failure to do so. However, the Institute of Legacy Management (ILM) (11) best practice guidance (which the code contains a reference to) recommends that legacy managers always act with transparency and integrity. The ILM note the need for good record keeping and for legacies to be prepared in line with legal and regulatory frameworks. We also note that KKL have stated that it is their own policy to recommend independent legal advice. However, they have not explained why this policy was not followed in this instance. As the complainant’s solicitors noted (see paragraph 30), the legacy the testator left to the charity in their will was more than the charity had received the year before from all other legacies combined. As such, it is unclear why KKL did not follow their own internal procedures for such a significant legacy. If this procedure had been followed in this matter and contemporaneous records kept, a challenge of the will’s validity may have been avoided.

89.    We have set out below our findings. We have identified which areas of the code we consider to be relevant and whether there have been any breaches.

90.    Section 18 of the code sets out the key principles and behaviours that should be adhered to by all fundraising organisations in regards to legacy fundraising.

91.    Section 18.3.3 (b) of the code states 

“Fundraisers MUST ensure that they are absent at all times during the preparation, drafting and signing of the Will.”

92.    For the avoidance of doubt, we consider a fundraiser to be a charitable institution or third-party fundraiser who asks for money or other property for charitable, benevolent or philanthropic purposes, or a person who asks for money or other property for a charitable organisation.

93.    KKL actively encourage people to donate to JNF by providing wording to add to a will leaving a legacy to JNF and offering free advice when people leave a legacy to JNF. This encouragement takes place while they are promoting the work that JNF do. We consider that these factors together clearly amount to a request for money or other property for JNF by KKL from their clients. As such, we consider that KKL are fundraisers for JNF.

94.    As KKL are fundraising for the charity, in line with section 18.3.3. (b) of the code, they should not be involved in the preparation and drafting of any wills that leave a legacy to JNF. This is because it is not possible for them to act in a truly independent manner (and therefore in the interests of their clients) given the closeness of the two organisations, and the fact that KKL clearly work to promote and fundraise for JNF. This is a clear breach of Section 18.3.3(b) of the code.

95.    Section 18.3.3(a) of the code states 

“Organisations MUST NOT draft or be directly involved in drafting Wills in favour of the organisation.” 

96.    The organisations have told us that they are separate legal entities. We are concerned that this is insufficient to demonstrate that JNF was not directly involved in the drafting of the testator’s will, in circumstances where KKL is a wholly owned subsidiary and all the directors of KKL are also trustees of JNF. In particular, we do not take much assurance from the separation of systems and files of the organisation. As the directors of KKL are also trustees of JNF, it is to be taken that these individuals are able to view both organisations’ systems and records. We consider that there is insufficient separation of function and personnel between the two organisations. This gives rise to the clear perception of a conflict of interest.

97.    It is plain that KKL carry out a fundraising role for their parent company through the will writing service and share directors and other functions. For the reasons set out above, we are concerned that there is neither sufficient nor meaningful separation between the two organisations. On these grounds, we find that the charity have breached section 18.3.3(a) of the code.

98.    Section 1 of the code sets out the key principles and behaviours that should be adhered to by all fundraising organisations.

99.    Section 1.2 (e)(iii) of the code states 

“If a fundraiser knows or has reasonable grounds for believing that an individual lacks capacity to make a decision to donate, a donation MUST NOT be taken.”

100.    One of the complainant’s main concerns with the charity is that KKL took advantage of their spouse’s purported lack of capacity to make their 2016 will. The complainant believes that KKL took advantage of this in order to make the testator leave a large legacy to the charity.

101.    We note that the testator had a pre-existing relationship with the charity due to their use of the will writing service for a number of years and their use of KKL Charity Accounts Ltd/ SmartGiving since the 1950s. We also note that the testator wished to leave legacies to various charities to avoid inheritance tax liabilities on their estate. On the basis that the testator appeared to have developed a connection with the charity, we can see that it would not have been unreasonable for them to consider making donations to the charity, particularly at a time when they may have been putting their affairs in order. We also note that KKL and the testator’s accountant (witness C) both said that they did not have any concerns regarding the testator’s capacity and that the complainant was in attendance for each meeting KKL held with the testator regarding their wills. In addition, it is also relevant that KKL obtained a letter from the testator’s GP confirming that the testator had capacity to make changes to their will in 2016, suggesting KKL were aware that the testator’s age was a potential risk factor for consideration (paragraph 41).

102.    The testator’s relative (witness B) and the complainant have both stated that the complainant would not have been involved in discussions when present at meetings between the testator and KKL due to the “traditional” nature of their relationship. We also note that they have disputed that the testator had a long-standing relationship with the charity and the validity of the letter from the testator’s GP. In addition, we note that the complainant’s solicitors have stated that the testator had depression at the time that the will was changed, which they say may have impacted on their capacity.

103.    We note that the letter from the testator’s GP was provided after the will had been signed. However, we do not consider that a post-event assessment on capacity is inappropriate in these circumstances, particularly as there were several meetings and exchanges of correspondence for the will to be finalised. We also note that the GP’s letter states that the testator was intending to make changes when the will had already been made. We do not consider that these points challenge the validity or purpose of the GP’s letter, which was to give their medical assessment that the testator retained capacity to make financial decisions.

104.    We also note the comments from the complainant and others about the testator’s mental state, however we do not consider that the possible existence of depression is an indication that an individual does not have capacity to make financial decisions. Whilst we acknowledge the complainant’s concerns, as we have not seen evidence that the testator lacked the mental capacity to make changes to their will in 2016, we do not consider that the organisation has breached Section 1.2 (e)(iii) of the code.

105.    Section 1.2(e)(ii) of the code states 

“Fundraisers MUST NOT exploit the credulity, lack of knowledge, apparent need for care and support or vulnerable circumstance of any donor at any point in time.”

106.    We have considered whether the testator was exploited in breach of 1.2(e)(ii) of the code. In order to do so we first attempted to establish whether there was a credulity, lack of knowledge, apparent need for care and support or vulnerable circumstance on the testator’s part that could potentially have been open to exploitation. It is not in dispute that the testator was in their nineties and visibly physically frail at the time of the events complained about. What is less clear cut on the basis of the evidence available to us was their mental state, and whether they were vulnerable as a result of this.

107.    Family members have described the testator as experiencing an “intense and persistent depression” at the time of the events complained about (paragraph 29). They point to errors the testator made, for example, regarding the value of the testator’s estate, as well as a comment the testator made in a letter to witness A that they could not have drafted their will without witness A’s help as they “did not understand the tax side”, as evidence of the testator’s diminished mental faculties. In contrast, witness A describes the testator as having been “able to grasp the tax position quickly” (paragraph 37) and details the reason they said the testator offered to them for intentionally undervaluing their estate (paragraph 39).

108.    We consider that the testator’s comment in their letter can be interpreted in two different ways: either as evidence that they had enduring lack of understanding that should have alerted KKL to the testator’s vulnerability. Or, as evidence that the testator had a lack of understanding at the time of their meeting with witness A, but was able to follow and understand their professional advice, which they were subsequently thanking them for. In the latter scenario, this would not indicate a vulnerability on the testator’s part.

109.    Weighing up all the available evidence, whilst we accept and acknowledge the testator’s age and physical frailty at the time of the events complained about – as well as the strength of feeling on the part of their family in relation to their mental state – we consider we have insufficient evidence to make a finding of breach on this section of the code. We have been presented with conflicting accounts from the parties concerned that we are unable to reconcile in the presence of only limited direct evidence of the interactions between the testator and KKL.

110.    Section 18.3(b) of the code states 

“If a potential legator asks the organisation or any of its officers or employees to act as executor, the organisation MUST carefully consider whether to agree, bearing in mind the duties and responsibilities of acting as executor and potential risks to the organisation…”

111.    We note that the testator requested that KKL act as executors of their will alongside their spouse (the complainant), relative (witness B) and accountant (witness C) (see paragraph 44), as they wanted a professional to assist them. However, we have not seen any evidence to show that KKL considered the implications of agreeing to be the executor of a will that left a significant legacy to the charity that owned them. We consider the fact that KKL did not keep contemporaneous records regarding their decision to agree to act as the testator’s executor (rather than refer them to another professional organisation), and the fact that they did not advise the testator to obtain independent legal advice, shows that they did not carefully consider the implications of the closeness of their position to the testator’s affairs and the potential risks that this posed to the charity. Therefore, we have found that the organisation has breached Section 18.3(b) of the code.

112.    Section 18.3.5 (a) of the code states 

“Fundraisers MUST NOT make it a condition that the organisation is included in the Will and MUST NOT* exert undue influence on potential legators.”

113.    We note that when witness A met with the testator they discussed JNF’s charitable work (see paragraph 35). However, as we were not privy to what this conversation entailed, we cannot say that they exerted undue influence on the testator to leave a legacy to JNF.

114.    However, as per paragraph 3, KKL clearly state on their website that their service is free of charge if a legacy is left to JNF. While the charity stated (on behalf of KKL) that there are instances when KKL provide a free service without a legacy being left to the charity (see paragraph 81), we do not consider that this is clear on their website. We also note that these instances are only for individuals in “straitened” circumstances, thus implying for everyone else it is a condition to leave JNF a legacy. In fact, a member of the public looking to use their free service would likely consider it a condition to leave a legacy to the charity in their will. Furthermore, the charity themselves stated that it is an expectation that people using the will writing service will leave a legacy to the charity (see paragraph 80). As such, we consider that this is a breach of Section 18.3.5(a) of the code.

Recommendations

115.    As noted in paragraph 96, we have serious concerns about the potential conflict of interest that exists between KKL and JNF. We are concerned that there are insufficient safeguards and procedures in place to ensure that KKL is not influenced by the charity. Given that this relates to the charity’s governance we will share our final decision with the Charity Commission for England and Wales for their consideration.

116.    We recommend that the charity review the information provided on KKL’s website regarding their free will writing service being provided in return for a donation to the charity.

117.    We recommend that the charity review Section 15 of the code (which came into effect in October 2019) regarding legacies to ensure that they are aware of the standards expected.

118.    We ask that the charity write to us within one month of our final decision to provide us with an update on the action taken in response to our recommendations.

Conclusion

119.    We found that KKL are fundraisers for JNF and therefore they were in breach of the code by being involved in the preparation and drafting of any wills that leave a legacy to JNF.

120.    We found that there is insufficient separation of function and personnel between the two organisations, and as such found the charity had been involved in the drafting of the will that left a legacy to them in breach of the code.

121.    We found that there was no evidence that the testator lacked capacity at the time of drafting the will, as such KKL had not breached the code in this regard. However, we also found there was insufficient evidence to establish whether or not the testator had been vulnerable.

122.    We found that KKL had not considered the implications of agreeing to act as the executor of the testator’s will and the potential risks that this posed to the charity, in breach of the code.

123.    We also found that KKL had breached the code by making it a condition that individuals had to make a donation to JNF in order to use their free will writing service. However, we did not have any evidence that KKL had exerted undue influence on the testator to leave a legacy to JNF.

Footnotes

1.    This complaint was investigated using version 1.10 of the code which was in place at the time of the events complained about. A revised code came into effect in October 2019.

2.    Companies House is the UK's registrar of companies and is an executive agency and trading fund of Her Majesty's Government. They incorporate and dissolve limited companies.

3.    The Inheritance (Provision for Family and Dependants) Act 1975 is an Act of the UK Parliament concerning inheritance in England and Wales. This Act makes provision for a court to vary (and extend when appropriate) the distribution of the estate of a deceased person to any spouse, former spouse, child, child of the family or dependant of that person in cases where the deceased person's will or the standard rules of intestacy fail to make reasonable financial provision.

4.    Section 18 of the code sets out the key principles and behaviours that should be adhered to by all fundraising organisations in regards to legacy fundraising.

5.    In response to our draft decision, JNF told us there is no direct connection between SmartGiving and KKL. They stated the testator used SmartGiving for many years before they used KKL’s services, therefore they did not only make donations in return for KKL’s services.

6.    JNF told us that the testator’s accountant (witness C) ceased to be the treasurer of JNF in 2008, and has not had any involvement with them since they left.

7.    JNF said to us that following the administration of the testator’s estate, their net estate has been reduced by nearly £2 million.

8.    JNF told us that they denied this allegation. They said that witness A provided tax advice based on the information they was provided by the testator and did not seek to mislead them to try to procure a larger legacy to JNF.

9.    JNF provided a copy of an attendance note dated 27 July 2011 between KKL and the complainant. The complainant had met with KKL to make changes to their 2006 will. In the notes it is recorded that the complainant told KKL one of their parents had been the Chair of KKL in Stamford Hill. JNF stated that this attendance note showed the connection between KKL, the complainant and the complainant’s parent.

10.    A Jewish prayer recited for the dead.

11.    A membership body for legacy professionals. They also help define and share professional standards and guidance for legacy management.