Estates & Wills & Trusts

Be specific if you want to direct how charity spends bequest

By Staff

Testators who want a say over how their funds are spent should be specific with their bequests to larger charities, Toronto trust and estate litigator Felice Kirsh tells

Kirsh, a partner with Schnurr Kirsh Oelbaum Tator LLP, explains that charities with broad mandates, such as the Canadian Cancer Society (CCS), the Heart and Stroke Foundation or major hospitals, are likely to be involved in a wide range of activities.

“People who are giving money to large organizations should definitely feel free to direct where the funds should go, and lawyers who are preparing their wills should ask questions about whether there are certain initiatives clients would like to support,” she says.

The National Post recently reported on a dispute between the CCS and the executors of an entrepreneur’s will, who asked for a portion of his $2-million bequest to be focused on pancreatic cancer research.

The two executors, a close friend and a family member of the deceased, watched a documentary on the disease they said “would have really resonated with him,” and proposed a partnership between the CCS and a smaller pancreatic cancer foundation.

However, following discussions, the CCS demanded the remainder of the bequest from the estate to be distributed according to its own internal process, which involves an expert panel that decides on the most promising projects across Canada.

A spokesperson for the CCS told the Post that the email was a response to a perceived threat that the trustees would withhold the funds unless their wishes were complied with.

“We feel really strongly about this and that’s why we’re standing firm on our position that the funds be designated according to the donor’s specific wishes, not those of the executors,” the CCS spokesperson said, adding that the organization is already the largest Canadian funder of pancreatic cancer research.

The executors denied that they ever intended to halt the payment, acknowledging their lack of any legal right to direct use of the donation.

“It’s not like we’re trying to take the money away from the Cancer Society, we’re just trying to make sure it gets into good hands (working with) the Cancer Society,” the deceased’s nephew told the newspaper.

Kirsh says she has some sympathy for the positions of both sides.

“Laypeople might think the charity is in the wrong. Maybe they could have been nicer about how they went about it, but, ultimately, the CSS does have the right to direct where the money goes,” she says. “If you want to control where the bequest goes, it has to be done in the will and not by the executors at a later date.”

Still, in practice, Kirsh says smaller charities are more likely to be open to entertaining the views of executors on how the money should be spent.

“Smaller organizations don’t tend to be involved in as many initiatives and if fundraising is a challenge, they tend to be happier about getting the money, which means they don’t feel they have the pull to say it should be used for something else,” she says. “The bigger and more bureaucratic an organization is, the more rigid they are.”

Kirsh says another option for testators is to connect with charities during their lifetimes in order to discuss the terms of a bequest.

“Charities are open to talking about these issues,” she says. “When it comes to larger donors, some people like a plaque on the wall acknowledging the donation, while that’s less important for others.”

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