The Contested Will
(Added 1/20/2015)
About a year ago, you addressed complications in a will. You wrote that when 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. We've run into this situation and don't know how to proceed. Our attorneys say we have a right to sue, but my boss feels it would be untoward to sue a donor's estate because of the potential bad publicity. Should we fight those who are contesting the will?
We hear a lot in the nonprofit arena about the fears of bad publicity. One old ethics adage – not one to which I think we should blindly adhere – is that a charity should not do something if, as a result, it might be portrayed badly in a newspaper headline the following morning. Sometimes, without a full understanding of the situation, what seems to be bad actually isn't wrong or untoward. And rightfully fighting for your interests is neither.
The problem arises from how it might look to challenge the blood relatives of someone who has left a provision in his or her estate that will benefit a charity. As sacred as charity's role is in society, it is not more sacred than the role a provider plays for his or her family. Who would want to go up against the relatives in the court of public opinion, especially in this era of high-level scrutiny and almost-daily news stories of how charities misbehave?
But the thing is, even more sacred than the role a provider plays for family members is the idea that a person contemplating what will happen after death has the ability and right to direct how, to whom and when his or her own assets will be distributed. In that sense, it doesn't matter what the family or the charity wants. What matters is what the decedent wanted. And if the charity is confident that the decedent wanted to leave a bequest for its benefit, then it has a responsibility – not a mere option – to pursue the claim.
The legal issues here are numerous, and so the prerequisite for providing an ethics-based perspective is that the charity's attorneys are certain that the bequest designation is valid. Courts don't listen to the wishes of family members – or those of anyone else – just because. There has to be a reason to contest a will. That's what a probate court does – it proves (the Latin derivation of "probate" is probare, which means "to prove") or validates the terms of the will. If a charity's legal team thinks the charity has been properly named as a beneficiary, they should pursue the claim. A donor's intentions, as well as the good deeds the charity performs for society, are at issue. It should not matter that the wails of family members make a better headline than the facts of a case.
An oft-cited reason for a will to be challenged is that the decedent was non compos mentis – not of sound mind – or was coerced when writing the will. Charities can do much to avoid being in the mix of either charge by ensuring that the donor – and documents that it sought out and ensured this was the case – employed competent and independent legal counsel when the will was written.