Pub­li­ca­tions

Leav­ing a lega­cy: Doing char­i­ty the right way


In brief

The idea of leav­ing a lega­cy to char­i­ty in your will that helps those who are less for­tu­nate is cer­tain­ly an attrac­tive one. Get­ting your char­i­ta­ble gifts just right in your will can make things eas­i­er for every­one con­cerned after you have passed away. This arti­cle explores the gift (and the style) of giving.


Why give to char­i­ty via your will?

If we put aside the obvi­ous con­cept of karmic realign­ment, or its por­tion­ing out by the cos­mos, leav­ing char­i­ta­ble gifts in your will can be of major ben­e­fit to those in need either of a help­ing hand or to enable char­i­ta­ble organ­i­sa­tions to keep helping.

Even if a char­i­ty is the last in the list of ben­e­fi­cia­ries under your will, it can be a mas­ter­stroke to leave the residue of your estate to char­i­ty. This is because life does not always pan out as we hope. There is the pos­si­bil­i­ty that either some or all of the gifts to your ben­e­fi­cia­ries may fail due to one cause or anoth­er. This may leave you dying part­ly or whol­ly intes­tate. The out­come of a sit­u­a­tion such as this could be none of your wish­es being com­plied with, or delay, expense and incon­ve­nience to those left behind.

At Swaab, we work with many char­i­ties who have received major and minor tes­ta­men­tary bequests. It is heart warm­ing to see the dif­fer­ence that such gifts can make. Indeed, many of the char­i­ties that we work with are whol­ly depen­dent on phil­an­thropic and char­i­ta­ble gifts, with no Gov­ern­ment fund­ing at all. With­out such gifts, much life­sav­ing work could not be done.

Going to give? Give right

There are sev­er­al things to get right when you and your lawyer get togeth­er to dis­cuss which char­i­ty will make it into your will. Some of these issues include:

1. What is the charity’s name? 
The need to be pre­cise in your will is extreme­ly impor­tant to make it as easy as pos­si­ble for your fam­i­ly going through the process. Is it a char­i­ty? Is it incor­po­rat­ed? What is their Aus­tralian Busi­ness Num­ber? All very impor­tant to make sure the gifts go to where you want them to go.

2. Will they accept the gift?
Strange ques­tion? Def­i­nite­ly not. For a mul­ti­tude of busi­ness, tax­a­tion and inde­pen­dence rea­sons, char­i­ties do not always accept either gifts, gifts over a cer­tain val­ue, or gifts of a cer­tain type.

3. Does it, will it still exist? Trust your execu­tor to give for you. 
The time between mak­ing the will and the time of the admin­is­tra­tion of the estate will often be a long time. There­fore it is pos­si­ble the char­i­ty men­tioned in your will no longer exists or has changed its cor­po­rate struc­ture or name. Giv­ing your execu­tor to pow­er to select a char­i­ty with the objects you find most appeal­ing can help reduce com­plex­i­ty of the admin­is­tra­tion of your estate.

Make your word final

In an embod­i­ment of the above, below is a gen­er­al form for a bind­ing gift to char­i­ty for a will.

I give to [insert char­i­ty name, address and ABN]:
(insert a, b, c, or d)

a) the sum of $.….….….….….….… (or)
b) .….….….….….…% of my estate (or)
c) .….….….….….…% of the residue of my estate (or)
d) the rest and residue of my estate

to be used by the admin­is­tra­tion of the [insert name of char­i­ty] for gen­er­al pur­pos­es and I direct that the receipt of the Chief Exec­u­tive Offi­cer of the [insert name of char­i­ty] or oth­er appar­ent­ly autho­rised body of the [insert name of char­i­ty] will be suf­fi­cient dis­charge to my Executor(s) who is/​are not bound to see to its application.

Fur­ther, if you are mind­ed to give your execu­tor pow­er to select a char­i­ty, the below form might be suggested.

If the gift in [insert clause num­ber] can­not take effect com­plete­ly or at all, to the extent that it can­not take effect: to the char­i­ta­ble organ­i­sa­tion or organ­i­sa­tions in Aus­tralia which my execu­tors in their dis­cre­tion con­sid­er most near­ly ful­fils or ful­fil the objects I intend to ben­e­fit in the share or shares my executor(s) think fit

With the above in mind, make sure you speak to your lawyer when writ­ing a will. Every­one wants to make sure your last requests are hon­oured, and pro­fes­sion­al draft­ing will help make your final word final.