One of the most common ways to leave a significant and lasting legacy is to make a donation to charity in your Will. A donation by Will can vary from a small gift to a gift of your entire estate. Unfortunately, the larger the gift to charity you make in your Will, the more likely it is that a disappointed family member or other potential beneficiary will contest the gift and tie up your estate in litigation for a number of years, often at a significant cost to your estate, and thus ultimately, to the charity you wish to benefit. While it is impossible to ensure that your Will is never contested, there are certain steps that you can take to reduce the risk that it will be contested.
Ensuring your Will is property drafted
It is highly recommended that you seek the assistance of a lawyer when making your Will. Your lawyer can ensure that your gift to charity is properly worded and that your charity of choice is properly named. When making a gift to charity, you may wish to include restrictions on how your gift can be used by the charity. It is important to ensure that these restrictions are clearly drafted and can be complied with by the charity. It is recommended that you speak with a representative of your charity of choice to ensure that it can use the gift subject to your restrictions. It is also vitally important to ensure that the charity is property named. Where the language used in a Will is ambiguous or a charity is not properly named, this may necessitate an application to court by your estate trustees. This is a costly process that can be avoided at the outset through proper drafting.
Concerns about capacity and undue influence
As our population ages, it is becoming more common for a disappointed family member to claim that an elderly individual did not have capacity when they made their Will. It goes without saying that an elderly individual is not presumed to be incapable. However, if you have concerns that family members will claim that you were incapable when you made your Will, you should speak with your lawyer about certain precautions that you can take to prevent a successful incapacity claim. These include ensuring that your lawyer's file contains a record of the questions he or she asked you to assess your capacity, including administering a mini-mental state examination, if warranted. If you or your lawyer have any doubts about your capacity, you may also choose to submit to a capacity assessment performed by a registered capacity assessor at the time you make your Will.
Open dialogue with family members
Perhaps the best way to ensure that your Will is not contested on death is to have a candid conversation with family and other loved ones concerning your intention to benefit charity in your Will. It is often the case that beneficiaries will contest a Will because they are hurt or disappointed that they did not receive what they expected from your estate. Your gift to charity may come as a complete surprise to them because they were not aware that of your charitable intentions. While your Will is a private document and you have no legal obligation to divulge its contents to anyone, it may be prudent to inform your family of your plan to make a significant gift to charity in lieu of gifts to family and friends. This will eliminate any surprise on your death and may prevent beneficiaries from being disappointed that they did not receive a gift from your estate. As an added bonus, your family may also begin to consider ways in which they wish to benefit charity themselves.
Amanda Stacey SUPPLIED