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Section 15

Legacies

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Please provide any comments you have on the redrafted code rules below. You can comment on as many rules as are relevant to you. You can also save your responses and return to them later.

You can see how rules in the current code relate to the redrafted code in the Table of Changes.

The supporting documents include Code Compliance Guides which will help you understand how to meet the requirements of the redrafted code, and a Glossary with definitions of specific terms in the redrafted rules.

15. Legacies

Gifts in wills can be a particularly sensitive area of fundraising, so it is important that fundraisers have clear role boundaries. This section sets out standards to avoid undue influence and pressure and manage conflicts of interest while being sensitive to the wishes of the person leaving the gift (the testator) and any conditions they may attach to the gift.

15.1 General responsibilities

In this section, ‘you’ means a charitable institution, but each standard applies equally to the employees, agents and subcontractors of the charitable institution.

15.1.1

You must make sure that all fundraising activity relating to legacies considers:

  • The freedom of the potential testator to provide for their family and others; and

  • Any sensitive circumstances of the potential testator and their family and friends where known.


15.1.2

You must ensure information you provide to potential testators is clear and accurate. This includes:

  • Details of the charitable institution to include in legacy documentation.

  • That the information does not represent legal advice.


15.1.3

If a potential testator asks you or any of your officers or employees to act as executor, you must carefully consider the risks and potential conflicts of interest that could arise in meeting the duties and responsibilities as executor.

Legal Requirements for acting as an executor

In England and Wales: Under the Administration of Estates Act 1925, if you are appointed executor, you are legally required to only take out the grant of representation in your own name if you have the power to do so.

15.2 Communicating in person

In this section, ‘you’ means a charitable institution, but each standard applies equally to the employees, agents and subcontractors of the charitable institution.

15.2.1

You must behave respectfully towards potential testators. As part of this, you must ensure that fundraisers:

  • are open about the reason for an invitation to an event where legacies will be discussed;

  • do not act in a way which could be considered unreasonably pressurising;

  • carry out meetings in a suitable way, which is sensitive to the potential testator's interests and concerns;

  • keep a record of all meetings and communications with the potential testator's; and

  • accept the potential testator's right to

    • invite other people of their choice to all meetings;

    • decline a meeting; or

    • end a meeting at any time.


15.3 Involvement of charitable institutions in making a will

In this section, ‘you’ means a charitable institution, unless we tell you otherwise

Close relationships can develop between a fundraiser and a person considering leaving a legacy to a charitable institution. This can lead to the fundraiser benefitting rather than the charitable institution, and a legacy may be left to the individual fundraiser rather than to you as the charitable institution.

15.3.1

Fundraisers must not take advantage of a relationship with a potential testator while fundraising. To avoid this, they must:

  • Not draft, or be directly involved in drafting, wills in their favour.

  • Inform the charitable institution of any offer of a personal legacy (rather than a legacy to the charitable institution).


15.3.2

You must have procedures in place for addressing instances where a potential testator offers a personal legacy to a fundraiser.

If you believe a fundraiser has taken advantage of their position to seek a personal legacy, you must follow appropriate disciplinary procedures.


15.3.3

There are considerable risks in paying the costs involved in making a will which includes a legacy to you. But if you choose to do this, you:

  • Must not insist that you receive a legacy or that you are appointed as executor in exchange for paying for the will;

  • Must always recommend to the potential testator that they should get independent legal advice; and

  • Must make it clear to the potential testator that the solicitor or other will writer will be acting only in their interests and on their instructions.


Legacies with conditions

A testator may include "conditions" in their legacy which are legally binding restrictions on how a charitable institution can use their gift. These conditions could involve the specific purpose or project the gift can be used for, or how the testator wants the charitable institution to acknowledge the gift.

You will need to consider whether you can meet the conditions before accepting a legacy which may require independent legal advice. If you cannot meet legacy conditions or wish to change the conditions, you will need suitable authorisation from your registered body before accepting the legacy.

Further Guidance

Additional feedback




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