15.Legacies

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

• the freedom of the person leaving the legacy (the testator) to provide for their family and others; and
• any sensitive circumstances of the potential testator and their family and friends.

You must make sure fundraisers do not provide legal advice. Whenever legacy fundraising is done by an external third party who is a professional fundraiser, this fundraising must meet the legal obligations that professional fundraisers have.

If a person making a will asks you or any of your officers or employees to act as executor, you must carefully consider whether to agree, bearing in mind the duties and responsibilities of acting as executor and any possible risks to you.

If you are to be appointed as executor and take out the grant of representation in your own name, you must have the power to do so (for charities in England and Wales this usually means that you must have trust corporation status).

You must make it clear that the contents of any communications are not intended to be legal advice from you and that potential testators should get their own professional advice.

If you give a potential testator suggested wording for legacies made to you to be included in their will, you must make sure that the suggested wording is accurate (which may involve getting legal advice) and that you are clearly identified (this will depend on which country you are in, but will usually mean providing your full name, company number, address and the registered office address if you are a company, and registered charity number, if this applies).

You must be open about the reason for an invitation to an event if it is about legacies or if legacies will be discussed and may be asked for.

You must not exploit beneficiaries or supporters by using them as case studies or testimonials for legacy giving, and must respect their dignity and privacy. If you want to use case studies, you must get permission from the testator (or if they have died, from the person responsible for the estate) if possible.

You must not hold individual face-to-face meetings in a potential testator’s home to discuss legacies without that person having first had the opportunity to refuse the meeting.

In all visits to people who might consider leaving a legacy to you in their will, you must make sure that your fundraiser:

• accepts the person’s right to invite other people of their choice to be present at any stage of the meetings;
• reminds the person of the purpose of the visit;
• makes sure that the meeting is carried out in a way and at a length that is sensitive to and suits their interests and concerns;
• accepts the person’s right to end the meeting at any time, and does this promptly and politely; and
• makes and keeps attendance notes of meetings and communications with the person on file.

In all visits to people who might consider leaving a legacy to you in their will, you must make sure that your fundraiser does not act in any way that a reasonable person might judge to be threatening or as putting undue pressure or influence on the person.

You (or your fundraiser) must not draft, or be directly involved in drafting, wills in your favour.

If you are a fundraiser and you are offered a personal legacy (rather than to the charitable institution), you must explain to the person making the will that if they want to give a legacy to you personally, you must tell your line manager at your charitable institution about the gift.

Your fundraisers must not take advantage of being employed by you to ask for a personal legacy. If you believe that a fundraiser has abused their position and has asked for a personal legacy, you must follow disciplinary procedures for dealing with these situations.

There are considerable risks to you in paying the costs involved in making a will which includes a legacy to you, so it is discouraged. But if you want 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 person making the will that they should get independent legal advice; and
• must make it clear to the person making the will that the solicitor or other will writer will be acting only in their interests and on their instructions.

You must respect the wishes of the testator if they tell you they don’t want to receive any further marketing communications from you (which would include any fundraising requests) or, wherever possible, if they ask for a certain level of contact.

If a testator asks you to explain to family members why they are not included in their will, you must refuse or say that you can only explain why you need the legacy.

If you can meet the conditions and you accept a legacy, you must follow those conditions.

If a legacy is left under the condition that it is used for a particular purpose or project, but you cannot meet that condition, you must contact the testator’s personal representatives before accepting the legacy.

If you are a charity and receive a legacy for a specific purpose, you must contact the Charity Commission for England and Wales, Scottish Charity Regulator (OSCR) or Charity Commission for Northern Ireland (as appropriate) for help if: 

• the purpose has been fulfilled or otherwise provided for; 
• the money or gift can no longer be used for that purpose; 
• the purpose is no longer a charitable purpose; or 
• the intended purpose has stopped being a suitable and effective use of the money or does not provide a use for all the money.

If a legacy is left under the condition that it is used for a particular purpose, you must not use the legacy for a different purpose without proper authority from the Charity Commission for England and Wales, Scottish Charity Regulator (OSCR) or Charity Commission for Northern Ireland, or the Attorney General for Northern Ireland.

You must respect the testator’s or their estate’s wishes about any public recognition of the gift.