Protecting Charitable Interests
Are charities in a will easier to challenge when there are more than five entities named? This topic came up at a recent lunch with estate planning and litigation colleagues. One told a cautionary tale of a large estate that was litigated away from a dozen named charities. The charities lacked the will and coordination to uphold the testator’s clear charitable intent.
Casting charities as undeserving estate beneficiaries that “should be grateful” is nothing new. In addition to societal bias about the legitimacy of charities as estate beneficiaries, charities face a tactical and legal disadvantage when confronted with litigious claimants. Charities are hampered by lack of resources, fear appearing aggressive, and failure to coordinate.
Let me elaborate.
Resources: Only the top one or two percent of Canada’s 86,000 registered charities have sufficient resources to manage bequest administration in-house or consistently consult with legal counsel. It’s not just a lack of funds. Expert staff and clear processes are at a premium among charities.
Timidity: Charities may fear negative publicity arising from the defense of an estate donation. Will the action harm public trust or dampen the generosity of other donors? I don’t believe so. While there a couple of large charities that have a reputation for being assertive about fees or administrative issues, I don’t know of any Canadian charity that has loss donations over the long-term due to acting on good legal advice in an estate matter.
Coordination: Charities named in a will often work together to defend their mutual interests, often lead by the experienced staffer of a large charity. A flock of charities, however, may be meek and difficult to coordinate. It can be easy for a plaintiff with belligerent legal counsel to divide and conquer.
What are possible planning and governance solutions?
A gift is strengthened if the donor informs a charitable beneficiary of their estate plans.
If the testator’s goal is to support a number of smaller charities use a public foundation with donor advised funds. The public foundation is more likely to have the resources, expertise and will to protect the charitable interest.
Charity boards should develop an estate administration and litigation policy to prepare for the inevitable. Consult with legal counsel.