The public policy favoring testamentary bequests to charities is well established in the law. However, that public policy can, and does, conflict with other equally well-founded public policies. When confronted with this conflict, courts are often dismissive or even hostile towards the parties seeking to challenge a testamentary bequest to a charity. I argue that the policy favoring charitable giving has gone too far and has, in some instances, undermined other important public policies. Specifically, courts and legislators have strengthened the charitable bequest policy without giving enough consideration to other, equally important public policies. This problem is not new. History shows that similar policy conflicts have arisen periodically since late antiquity, if not earlier. The parameters of the problem, however, are somewhat new. The governing law, available technologies, and familial relationships have certainly evolved since the time of late antiquity. This article examines how the public policy favoring charitable bequests conflicts with various aspects of the equally important public policies of testamentary freedom and family protection.
Part II considers the competing public policies of testamentary freedom, family protection, and charitable bequests, as well as the existing legal doctrines aimed at furthering these policies. Part III examines the social and legal origins of charitable bequests and the periodic attempts to balance charitable bequests with other important policy considerations. Part IV examines the role of the non-profit sector in America today. Specifically, Part IV considers the size and scope of the nonprofit industry, the legal and economic benefits the nonprofit industry enjoys, and the manner in which nonprofits solicit charitable bequests. Part V illustrates how the current law fails to strike the appropriate balance between the competing policies, as the current law is too favorable to charities and reform is needed. Part VI concludes.
Recommended CitationElizabeth R. Carter, Tipping the Scales in Favor of Charitable Bequests: A Critique, 34 Pace L. Rev. 983 (2014)
Available at: http://digitalcommons.pace.edu/plr/vol34/iss3/1