On 30 June 2025, a significant legislative development came into force in Scotland with the introduction of the Record of Charity Mergers, maintained by the Office of the Scottish Charity Regulator (OSCR). This new statutory mechanism has direct implications for testamentary charitable gifts. Private Client Solicitors and estate practitioners may find it helpful to be aware of these changes.
The new legislation is introduced by section 13 of the Charities (Regulation and Administration) (Scotland) Act 2023.
Overview of the Record of Charity Mergers
The Record of Charity Mergers is a new formal register that records instances where a Scottish charity has either merged with another or undergone a change in legal form. From 30 June 2025 onwards, where a charity named in a will has merged or changed its legal identity, any legacy left to that charity will automatically vest in the successor charity, provided that:
- The merger or legal transformation occurred on or after 30 June 2025; and
- The merger has been formally recorded in the Record of Charity Mergers.
This statutory presumption applies unless the will expressly provides to the contrary—i.e., if the testator has made it clear that the gift is not to pass to any successor body.
Legal Effect of Registration
Once a merger is registered, the recipient charity is deemed to “step into the shoes” of the original charity for the purposes of testamentary gifts. This represents a departure from the previous position, where a gift to a defunct charity would typically lapse unless the will included a fallback provision or the court applied the cy-près doctrine.
It is important to note that registration is not automatic. The onus lies with the recipient charity to notify OSCR and ensure the merger is properly recorded.
Practical Considerations for Will Drafting
Solicitors engaged in will drafting should now consider this legislative change in their standard client advice. Specifically:
- Clients should be advised that, unless they specify otherwise, any legacy to a charity that subsequently merges or changes legal form will pass to the successor charity by default.
- If a client does not wish for the legacy to transfer in such circumstances, this must be explicitly stated in the will.
- Consideration should be given to including fallback provisions or conditional clauses where appropriate.
While the legacy will automatically vest in the successor charity if the merger has been properly registered in the Record of Charity Mergers, this is contingent on the recipient charity completing the registration process.
Although there is a clear incentive for the successor charity to do so, advisers may still wish to adopt a belt-and-braces approach by including fallback provisions—especially where the client expresses a preference.
For wills executed before 30 June 2025, practitioners may wish to assess how changes to the law may impact charitable legacies during routine will reviews to ensure that client intentions remain accurately reflected.
Implications for Estate Administration
In the context of estate administration, where a legacy is left to a charity that no longer exists, and the will is silent on the matter, executors and administrators must consult the Record of Charity Mergers. If the original charity has a registered successor, the legacy will pass to that successor unless the will expressly prohibits this.
Conclusion
The introduction of the Record of Charity Mergers represents a welcome clarification in the law surrounding charitable legacies in Scotland and helps preserve charitable intentions in the face of organisational change. However, it also introduces new implications that legal professionals will need to be aware of and factor into client advice and estate administration.