Enforcing a Bequest Intention

(Added 2/10/2014)

Q

One of our donors has died. While he made several annual gifts during his lifetime, his biggest commitment was when he told us of his intentions to leave us in his will. As it was quite a lot, and because we run on a tight budget, we were looking forward to receiving the distribution when the probate process was complete. But now, we've been told that his wife doesn't want us to receive the money, that she needs the funds to keep her lifestyle, and that the provision was removed from his will long ago – longer ago, actually, than when we last received an update about his intentions. I smell a rat here. I don't want to make waves but I also don't want our organization to suffer at the expense of his wife's greed.

A

Most people think of a bequest intention as a pledge. In fact, there's been a lot of discussion over the past several years about how to make bequest provisions enforceable, much like lifetime pledges can be. While bequest intentions that have not been included in a person's will, apparently, can be written so that they can be enforced, most are not written that strictly. For the most part, it's an agreement founded on trust and understanding.

I think it's fair to say that if your organization was not named as a beneficiary of the estate in the man's will, the one that was probated, you have no claim – legal or moral – to any unsubstantiated assurances he might have made to you while he was alive. It's also fair to say that you want to avoid accusing his wife of being greedy – you have no idea what discussions took place between them. (Even within your office you want to stay clear of such a conclusion; that kind of poisoned air has a way of working its way to the public ear.) It's possible that his wife persuaded him not to leave a substantial amount to charity – she might have made the case that she or the children if there were any, needed the money – and, if that was the case, perhaps he was too embarrassed to say anything to you.

Writing a will is one of the most personal and meaningful tasks an individual can perform, and charities, while often the recipients of the estate planning process, cannot count on that beneficence, not even from people who have shown their support during their lifetimes. Minds can change, times do change, and circumstances occasionally change. You did nothing wrong, assuming, as you imply, that you stayed in touch with the donor. This would not have changed anything, but you might have stayed more on top of the probate process, as you would have learned of the donor's final intentions sooner.

Some charities begin to spend anticipated money far too soon. I'm not sure, but perhaps your "looking forward to" is really a way of saying that you were "counting on" receiving the gift. While it's natural for budget-minded business officers and executive directors to take into account bequest expectancies, especially from those who have already died, it is generally a better idea to wait before planning anything. We can never be certain that we have the money until it's in our hands.

One final thought: This is different from when a will is contested. In that situation – where a charity is named in the will but family heirs or others don't like that fact – a charity has a right, an obligation really, to fight for its interests. More on that in a later column.

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