Legacies

Leaving a gift to a charity in a Will is likely to be the largest donation an individual ever gives to charity. Fundraising for legacy gifts is often built on establishing a long-term relationship between the potential legator (the person who leaves a gift in their Will) and the charity or charities that they choose to donate to.

It can also be a challenging area of work – legacy fundraising will by its very nature lead to some sensitive topics and conversations with an individual and potentially his/her family or next of kin. It’s also a complex area because of the regulatory and legal considerations of leaving Wills and the administration of estates. This means charities and fundraisers have to take care to ensure they are acting appropriately. 

It’s important for legacy fundraising to:

• Be characterised by honesty, openness and fairness
• Respect, in all cases, that the decision is the potential legator’s and his/hers only
• Treat all personal information as strictly confidential, unless explicitly agreed otherwise
• Respect the sensitivity of the family and friends of the potential legator
• Pay particular attention when communicating with vulnerable people, who could include, but are not limited to, the following: service users and client groups; the terminally ill; bereaved relatives or friends; and people with learning difficulties and/or disabilities
• Do not denigrate another charity in any way, for example, by talking negatively of another organisation

When charities, or others acting on their behalf, undertake legacy fundraising they must comply with the Code of Fundraising Practice.

Charities and other fundraising organisations use a wide range of one-to-many media routes to market legacies to current and potential legators. These include radio, press, direct mail, inserts, TV, online and email.

When charities, or others acting on their behalf, undertake legacy fundraising, charities should:

• Take great care to ensure the good taste and appropriateness of all promotional literature
• Take similar care in the selection and use of the fundraising techniques to be employed in legacy fundraising
• Ensure that the location and display of all promotional material (especially advertisements) are appropriate to: the nature of the cause concerned, the content of the fundraising message, and the likely circumstances and disposition of the audience/readership aimed at (for example, the accident and emergency department of a hospital shouldn’t be considered an appropriate site for promoting legacies)
• Ensure all communications, whether printed matter or not, are clear and accessible, and in a format suitable for the audience (for example large type where appropriate)

Group activity will normally consist of an invitation to an event, dinner, reception, or tour, for example. Whether the event is solely about legacies or organised jointly with other fundraising teams, it is important for charities to be transparent about the reason for the invitation to an event, being explicit that legacies will be discussed if the issue is going to be raised. Consideration should be given to the appropriate level of financial investment in the event, including from the perspective of the audience. It is advisable for event organisers to avoid being exploitative in their ‘use’ of beneficiaries or supporters as case studies or testimonials, and to respect their dignity and privacy.

Many organisations offer the opportunity for potential legators to speak to a representative of the charity on a one-to-one basis, often at a meeting in the supporter’s home. The representative of the charity might include a staff member, trustee, volunteer or a third party agency fundraising on behalf of the charity. In this section ‘fundraiser’ refers to any such charity representative.

Before beginning any face-to-face legacy fundraising activity, it is advisable for a charity to approve an agreed set of written procedures, clearly establishing a policy on proper practice for this activity. It is good practice for this set of procedures to be communicated to all fundraisers engaged in face-to-face legacy fundraising activities, and for fundraisers to abide by its requirements. Face-to-face meetings in a potential legator’s home to discuss legacies should only occur if that person has first had the opportunity to decline the meeting. It is advisable for meetings to always be held by prior appointment and be confirmed in writing.

It is important that in all face-to-face fundraising, fundraisers:

• Accept the right of the potential legator to invite a third party of their choice (such as a friend, solicitor, or family member) to be present at any stage of the face-to-face meeting(s). Fundraisers who deny individuals this right, run the risk of being accused of exerting undue influence and such denial may lead to the Will being contested
• Remind the potential legator of the purpose of their face-to-face visit
• Ensure the meeting is undertaken in a manner and at a length that is sensitive to, and suits the interests and concerns of, the particular potential legator and that the fundraiser’s behaviour cannot be construed as threatening
• Accept the right of the potential legator to terminate the face-to-face meeting at any time, and to accept the termination promptly and courteously
• Keep clear and precise records of all contact with potential legators and conclude by summarising any future action
• Inform potential legators, once they have received a record of the meeting, that they can change any commitment made without further contact on the issue if they so wish

Case studies of previous legators and current pledgers are an important part of supporter communications with potential legators. It is good practice for case studies to be accurate and not fictitious, and at all times the charity should respect the subject of the case study and his/her situation. It is advisable for the charity to ensure that either the individual, or in the case of the deceased, his/her family or personal representatives, approve copy and use of images. Where the real names or other elements of case studies are changed or are a composite of several case studies, this ought to be made clear and be explained within the case study. 

It is important charities are aware of these potential dangers and have in place policies and procedures to deal with such instances.

If a legacy is offered in a personal capacity, fundraisers must explain that, should the legator wish to give a legacy to him/her personally, then the fundraiser is obliged to disclose the gift to his/her line manager at the charity. Fundraisers shouldn’t take advantage of their employment by the charity to solicit a personal legacy. If a charity considers that a fundraiser has abused his/her position and has solicited a personal legacy, the charity should have disciplinary procedures in place for dealing with such situations.

If volunteers and/or staff are to be asked for legacies, it should be made clear that they are under no obligation to leave a legacy.

If a potential legator asks the charity to explain to disinherited family members why they are being disinherited, the charity ought to decline or otherwise only explain why the charity needs the legacy.

The charity should also ask the supporter to put in writing to the charity his/her reasons for benefiting the charity instead of his/her family. It is good practice for the charity to retain the letter on file and to recommend to the potential legator that he/she keep a copy of the letter with his/her original Will.

Charities and their agents may choose to use a range of incentives to promote legacy giving. It is important that charities ensure incentives and recognition devices offered to potential legators are of appropriate value, which will usually be of minimal cost.

In relation to free and discounted Will schemes as well as requests to pay for Wills, charities should follow the Charity Commission guidelines as set out in the Charity Commission guidance ‘Paying for Wills with Charity Funds’. It is essential that fundraisers do not make it a condition that the charity is included in the Will. Fundraisers must not exert undue influence on potential legators. Fundraisers who fail to follow these guidelines run the serious risk that the Will may be contested and such actions may jeopardise all of the organisation’s legacies.

Sometimes potential legators want to give a legacy to a charity subject to a requirement that the legacy is used for a specific purpose. That the legacy is used for that specific purpose may be a condition of the gift and, if so, the charity must comply with it. Alternatively, the purpose may be expressed as a non-binding wish, with which the charity can choose whether or not to comply. In relation to such legacies, it is advisable for charities to:

• Ask the potential legator to consider expressing their purpose as a wish rather than as a condition. Explain the difficulties that can arise if the charity cannot or ceases to be able to comply with a condition and that the legacy might then fail
• Make clear that the potential legator can choose to make the legacy subject to a condition as to its use
• Inform the potential legator if it is not possible or it is unlikely that the charity can comply with the proposed condition(s)
• If the potential legator proposes to make the legacy subject to an expressed wish as to its use, be honest and open about whether it is likely that the charity will comply with the wish
• If a legacy is subject to a requirement that it is used in a specific way or for a specific purpose (e.g. endowments), consider whether legal advice is needed about whether or not the specific purpose is a condition or a non-binding wish, particularly if there is any doubt

Gifts to charities following the death of supporters may be received at a time when family members and friends are grieving and those dealing with the gift, often the next of kin or a close friend, may feel particularly sensitive to how it is handled by the charity. In addition to feelings of grief, family and friends may be under some strain in managing the deceased’s estate or experience feelings of obligation to the deceased. 

It is good practice for staff dealing with in memory gifts to ensure that donors are thanked appropriately and that any recognition is suitable. Charity staff should communicate with family and friends of the deceased, including lay executors, with professionalism, courtesy and sensitivity. It is advisable for communication with professional executors or other professionals to be courteous and professional at all times. Where names are mentioned or case studies sought and subsequently used, permission ought to be obtained from the next of kin where possible.

Charity staff should at all times be mindful of the need to balance the opportunity to promote on-going support with the sensitivities associated with bereavement. Charity staff administering legacies have a particular responsibility to balance legal duties and the optimisation of benefit to charity, with the maintenance of their charity’s reputation and future income stream - whether dealing with professional or ‘lay’ executors. It is important that legacy administration procedures take account of the sensitivity of their situation.

It is important that charities ensure fundraisers do not provide legal advice. Legacy fundraising materials ought to make clear, where relevant, that the contents are not intended to constitute legal advice by the charity, and that potential legators are strongly advised to seek independent professional advice from their own professional advisor.

A charity may suggest potential lawyers or professional Will-writers (see ‘Definitions’ below), but it is good practice to offer a choice of at least two without making a recommendation. Alternatively, if the potential legator does not have a lawyer or professional Will-writer, the legator could be referred to the relevant law society or the Society of Trust and Estate Practitioners. It is advisable for charities to avoid drafting or being directly involved in the drafting of Wills in favour of the charity. A fundraiser must not exert undue influence on a potential legator.

Witnesses to a Will under which a charity benefits ought to be independent of the charity. In particular, a representative of the charity should not be a witness. A representative of the charity acting as a witness may lead to the Will being contested.

To act as executor, if asked to do so by a potential legator, the charity and its officers must have the power to do so (which usually means that the charity must have trust corporation status or be able to appoint an individual as executor on its behalf). It is also advisable for the charity to consider, for it or its officers, whether it is appropriate to take on the role of executor, which may depend on the size of the legacy, and whether taking on the role is to be made a condition of receipt of the legacy.

In England and Wales, whenever legacy marketing activity involves direct contact between the public and a third party agency, the charity must comply with the Charities Act 1992 provisions (as amended) on declarations by professional fundraisers. Similar regulations apply in Scotland under the Charities and Benevolent Fundraising (Scotland) Regulations 2009 (further information is available from the Office of the Scottish Charity Regulator).

Bequest or legacy

A gift in a Will to a person or organisation. There are different types of bequests.

Residuary legacy

A gift of the residue (or a share of the residue) of the estate. Residue is whatever is left after all debts, funeral expenses, certain other costs and tax and any other legacies have been deducted.

Pecuniary legacy

A gift of a fixed sum of money. The value of a pecuniary gift will decrease over time, as the cost of living increase.

Specific legacy

A gift of a particular named item – for example, a piece of jewellery, furniture, a painting, buildings, land, house contents, chattels, shares, etc.

Contingent legacy

A gift that is dependent upon the occurrence of an event which may or may not happen. For example, a gift to a charity which applies only if other beneficiaries named in a Will die before the individual dies.

Life interest / reversionary bequest

A right to enjoy property, or the proceeds of investment of property, until death or in the case of some reversionary interests, some other event. The beneficiary of a life interest is known as the ‘life tenant’. The interest will cease on death of the life tenant.

Gift in remainder / remainder, interest in

An interest/gift in property that comes into effect after a prior interest in the property has ended e.g. in a property subject to a life interest. A beneficiary of a gift/interest in remainder is known as a ‘remainderman’.

Codicil

A document which amends (e.g. alters or adds to) a Will. It must be drawn up and executed in the same way as a Will in order to be valid.

Executor(s)

The persons appointed by an individual in his/her Will who are responsible for administering the deceased person’s estate. Personal representatives include executors.

Legally qualified

Someone who holds a qualification recognised by the Law Society of England and Wales, the Law Society of Scotland, the Law Society of Northern Ireland, the Bar Council of England and Wales or Northern Ireland, the Faculty of Advocates in Scotland or the Institute of Legal Executives.

Legatee

The beneficiary of a legacy.

Legator

Someone who has died leaving a legacy to a charity. A 'potential legator' is someone who may include a gift to charity in his or her Will.

Professional Will-writer

For the purposes of this guidance, a professional Will-writer is an individual that meets the following standards:

• Can provide proof that she/he has passed an examination in the subject of Wills with a recognised legal training provider. Recognised legal training providers include: law colleges and training institutes accredited by the Law Society of England and Wales, the Institute of Legal Executives, Central Law Training, STEP and the Institute of Professional Will writers. This listing should not be taken as being exhaustive
• Has professional indemnity insurance (minimum cover £2m)
• Undergoes mandatory continuing professional development (minimum 20 hours a year)
• Offers the ability for clients to gain redress from a recognised body in default of the individual, the body holding adequate funds for this purpose
• Holds membership of a professional body which has a mandatory Code of Conduct and can regulate; sanctions must include expulsion from membership

Testator/testatrix

Someone who has made a Will. 

Will

Either a Will or a codicil. In order to be valid, a will/codicil must be drawn up and executed in accordance with certain formalities. Both can include a legacy to charity.

Pledge

A promise or statement that an individual intends to include a legacy in their Will or has already done so. It is not a binding contract.

Pledger

The term 'pledger' is used to denote someone who has informed the charity that they have included, or plan to include, a legacy to that charity in their Will.