Note: MUST* and MUST NOT* (with asterisk) denotes legal requirement
MUST and MUST NOT (without asterisk) denotes requirement of the Code of Fundraising Practice
18.1 Legal References for this Section
- Charities Act 1992
- Charities and Trustee Investment (Scotland) Act 2005
- General charity law principles
- General trust law principles
18.2 Key Principles
a) A fundraiser MUST NOT* exert undue influence on a potential legator.
b) Organisations MUST ensure that all legacy fundraising activity is done whilst considering:
- the duty of trustees to optimise the benefit to the fundraising organisation;
- the potential legator’s freedom to provide for her/his family and others; and
- the sensitivities of the potential legator and his/her family and friends.
c) Organisations MUST ensure fundraisers do not provide legal advice.
18.3 Undertaking Legacy Fundraising
a) Whenever legacy fundraising is done by an external third party who is a professional fundraiser, this fundraising MUST* comply with professional fundraising legal obligations.
b) If a potential legator asks the organisation or any of its officers or employees to act as executor, the organisation MUST carefully consider whether to agree, bearing in mind the duties and responsibilities of acting as executor and potential risks to the organisation. If the organisation itself is to be appointed as executor and take out the grant of representation in its own name, the organisation MUST* have the power to do so (and for legators domiciled in England and Wales this usually means that the organisation must have trust corporation status).
c) Organisations MUST ensure that any incentives and recognition devices are of appropriate value, which will usually be of minimal cost.
18.3.1 Written Communications Seeking Legacies
a) Organisations MUST make clear that the contents are not intended to constitute legal advice by the organisation and that potential legators should seek their own professional advice.
b) If organisations provide potential legators with suggested wording for legacies to the organisation to be included in their Wills, they MUST ensure that the suggested wording is accurate (which may involve seeking legal advice) and that the organisation is clearly identified (which will depend by jurisdiction, but will usually mean providing the organisation’s full name, address and the registered office address if it is a company – and registered charity number, if applicable).
18.3.2 Communicating in Person
a) Organisations MUST consider the needs and situation of vulnerable individuals before embarking on face-to-face legacy fundraising activity.
b) If holding an event that is solely about legacies or where legacies will be discussed and potentially solicited, organisations MUST be open about the reason for the invitation to an event.
c) Event organisers MUST NOT be exploitative in their ‘use’ of beneficiaries or supporters as case studies or testimonials, and MUST respect their dignity and privacy.
d) Individual face-to-face meetings in a potential legator’s home to discuss legacies MUST NOT occur without that person having first had the opportunity to decline the meeting.
e) In all individual face-to-face legacy fundraising, fundraisers MUST:
- accept the right of the potential legator to invite a third party of their choice to be present at any stage of the face-to-face meeting(s);
- remind the potential legator of the purpose of their face-to-face visit;
- ensure that the meeting is undertaken in a manner and at a length sensitive to, and suiting the interests and concerns of, the particular potential legator and MUST* ensure that the fundraiser’s behaviour cannot be construed as threatening or exerting undue pressure or influence;
- accept the right of the potential legator to terminate the face-to-face meeting at any time, and MUST accept the termination promptly and courteously; and make and retain attendance notes of meetings and communications with the potential legator on file.
18.3.3 Fundraisers’ Involvement in Making a Will
If the witness to the will is the beneficiary or a connected person to the beneficiary organisation, the validity of the will could be challenged.
a) Organisations MUST NOT draft or be directly involved in drafting Wills in favour of the organisation.
b) Fundraisers MUST ensure that they are absent at all times during the preparation, drafting and signing of the Will.
c) Witnesses to a Will under which an organisation benefits MUST be independent of the organisation, including staff and volunteers, to avoid any risk of “undue influence” which could affect the validity of the legacy.
18.3.4 Fundraisers’ Relationships with Potential Legators
Close relationships can develop between a fundraiser and a potential legator. This can sometimes favour the fundraiser rather than the organisation, and a legacy may be left to the individual in their personal capacity, rather than to the organisation.
a) 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 MUST disclose the gift to his/her line manager at the organisation.
b) Fundraisers MUST NOT take advantage of their employment by the organisation to solicit a personal legacy.
c) If an organisation considers that a fundraiser has abused his/her position and has solicited a personal legacy, the organisation MUST follow disciplinary procedures for dealing with such situations.
18.3.5 Paying for Wills with Charity Funds
a) Fundraisers MUST NOT make it a condition that the organisation is included in the Will and MUST NOT* exert undue influence on potential legators.
b) In England and Wales, the organisation should take account of any guidance issued by the Charity Commission in relation to paying for Wills with charity funds.
18.4 After a Legacy Has Been Made
18.4.1 Ongoing Contact with Legators
a) Organisations MUST* respect the wishes of the legator if they want no further marketing communications (which would include any fundraising requests) from the organisation or, wherever possible, if they request a certain level of contact.
b) If a legator or potential legator asks the benefitting organisation to explain to disinherited family members why they are being disinherited, the organisation MUST decline or otherwise only explain why the organisation needs the legacy.
18.4.2 Conditional/Restricted Gifts
a) If a legacy is left with a request/wish, rather than subject to conditions, organisations MUST consider whether to comply with the legator’s wishes.
b) If a legacy is left on condition or subject to a binding obligation that it must be used for a particular purpose or project or such like, organisations MUST contact the administrator/executor if the conditions cannot be fulfilled before accepting the legacy or, otherwise, if the conditions can be fulfilled and the legacy is accepted, the organisation MUST* follow those conditions.
c) In Scotland, if a legacy or gift is given for a specific purpose but the purpose has been fulfilled or otherwise provided for, can no longer be given effect to, has ceased to be charitable, has ceased to be a suitable and effective use of the funds or does not provide a use for all of the funds, organisations MUST consider applying to OSCR to reorganise the restricted fund in order to allow the restricted fund to be used to better effect in a way that is consistent with the charity’s constitution. However, a charity MUST NOT* use restricted funds for a different purpose unless OSCR grants such a reorganisation application.
18.4.3 Administering Legacies and Gifts
a) Organisations MUST respect the legator’s or their estate’s wishes about any public recognition of the gift.
b) Where case studies are sought, permission MUST be obtained from the next of kin, where possible.