Avoiding Confusion And Claims When Making Charitable Bequests
This post comes from the Practice Tip column in the most recent issue of LAWPRO Magazine (which will hit the desks of Ontario lawyers in a few weeks). A hat tip to LAWPRO claims counsel Pauline Sheps for suggesting this great tip – unfortunately it is a malpractice claim scenario she sees all too often.
Many wills include one or more bequests to charitable or religious institutions. In spite of the testator’s good intentions, these bequests often lead to claims when there is confusion over which institution was to receive the bequest. These mistakes often come to light only when the estate is being distributed – and they can lead to costly and time-consuming litigation when charities fight over the bequest.
Many of the claims reported in this area could be avoided if lawyers took steps to confirm that the information given by the testator is correct when the will is being drafted.
Often testators will give the lawyer a name for the charity that is outright wrong or doesn’t include an indication of its corporate status. For example, the client says “Niagara Cat Shelter” but the real name is “Niagara Falls Cat Shelter Inc.”
In other situations there is ambiguity about which institution was to receive the bequest. For example, a legacy to “the ALS Society” is unclear. Does the testator intend that the bequest go to the provincial association or the national body?
Similarly, a bequest to St. John’s Church can be quite confusing if there is more than one church with the same name in the region. There can also be confusion if the church or charity no longer exists. For this reason, including an address and phone number in the will can be helpful.
It is imperative that lawyers taking instructions for a will ensure that the beneficiary of the bequest exists and that the beneficiary is referred to by its full legal name in the will. Go beyond the name of the charity and ask for an address and phone number. Cross-check the information provided to make sure the charity the testator intends the bequest to go to is properly named. There are a multitude of resources available to confirm the names and addresses of charitable entities. Many charities have websites, and most are referenced in various government and non-government directories.
Taking the time to check the proper name of an entity and confirming that information with the testator can avoid a potential negligence claim in the future.
Cross posted on Slaw.ca