How to market legally (and appropriately) for a bequest

Bequests provide an opportunity for supporters of your school to make a lasting gift for the future of the school. For some, this may be more attractive than a donation now, as a gift in a will does not impact their financial situation in life.

However, your supporters won’t know how their gifts can benefit the school, unless you reach out to them and let them know how important a bequest can be. As lawyers taking instructions to prepare wills, we know that our clients are unlikely to make a gift in their will to a school without some prompting. Even if they do want to leave something to the school, it is best if the school is involved from the start. Your talking with the supporter allows the gift to be tailored to the school’s needs.

This is where marketing plays a role. By and large, you already know which of your supporters are most likely to make a bequest. They are typically your regular donors and/or those most actively involved in the school community. A simple approach to these people may involve:

  1. writing periodically (annually or quarterly) to let them know how their bequest will benefit the school
  2. creating a bequest society and inviting members to special events
  3. featuring donors and their bequests in the school newsletter or other publications.

However, asking for a bequest must be approached cautiously. As fundraising is generally regulated across Australia, you should check whether seeking bequests is exempt from regulation in your state or territory.

In New South Wales, for example, asking for a bequest is not considered a fundraising appeal and therefore does not require a fundraising licence. However, in South Australia, requesting a bequest is considered fundraising and is regulated by the Collections for Charitable Purposes Act 1939. Therefore, before seeking bequests, you must make sure you comply with the relevant fundraising requirements and think about whether your marketing campaign may reach supporters who are living interstate.

Another thing to consider is what your marketing material says about how a bequest is going to be used. You must be careful not to misrepresent how you intend to use any gifts, regardless of whether they are a bequest or a donation.

We recommend suggesting that bequests be given for the school’s general purposes. You can provide information on a range of activities bequests may be (or have been) used for, without confirming how a certain bequest will actually be used.

Your marketing material should assist your supporters (and their lawyers) by providing the wording to be used in the will. Make sure that this wording is up to date. We too often see bequest brochures that suggest wording taken from a Dickens novel. It is not necessary to say “I give devise and bequeath” when a simple “I give” will do!

Providing some guidance to your supporters should also help avoid situations where the way a will is written creates practical difficulties for the school. For example, a gift with specific conditions attached leaves the school in the position of having to decide whether it is actually able to accept the gift. We recommend that you encourage your supporters to seek legal assistance with the preparation of their will to minimise these problems.

There are many reasons a gift may fail. For example, if a supporter leaves a specific gift to the school (such as real property or a vehicle) that they do not own when they die, the gift will fail. The school will not be entitled to receive another gift (or the equivalent value in cash) instead. Therefore, you could encourage your supporters to give to the school a percentage of their ‘residual estate’ (what is left after payment of debts, funeral costs and specific gifts) rather than a specific gift.

Schools vary greatly in how they are structured and these structures get changed from time to time. Foundations come and go. If a supporter has made a gift in a will to an entity which ceases to exist before they die, the gift may fail. If your school has restructured or is planning to do so, take the opportunity to remind your supporters that they may need to update their wills to ensure their intended gifts are effective.

Finally, a word of warning: do not be overly zealous in your encouragement of people to leave gifts in their will to the school, particularly if close relatives are going to miss out. Those relatives may not appreciate the generosity of the deceased and assert that the school’s employees exercised undue influence on their frail, elderly and vulnerable relative. Alternatively, they may bring a family provision claim asking the Court to rewrite the will in their favour. For more information on this topic, please have a read of David’s article Charitable Legacy vs Family Provision.

Co-authored by Stephanie McLuckie.

David Ford is a Partner of Carroll & O’Dea Lawyers (formerly of Emil Ford Lawyers), known for his expertise in education law. With over 30 years’ experience advising Australian educational institutions, he also advises school boards on governance and conducts workplace investigations for schools.

SMJ David Ford

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