Should They Still Honor Your Wishes?

George Rebane

Many people of means make charitable donations and bequests with caveats attached that they are told will be honored after they die.  But not all people think that should be so.  The practice of subverting the will of the dear departed has a long history.  The Ford Foundation, founded in 1936 by Henry (died 1947) and Edsel (died 1943) Ford, is a good example of such radical repurposing that many such bequests have suffered.  In the Ford Foundation case, the transformation started soon after Henry’s death and was directed by its trustees so far afield by 1976 that its then chairman Henry Ford II resigned in disgust.

So, here’s the question – to what extent should the departed donor wishes to charities be honored?  We here consider only cases where the donor conditioned his donation subsequent to receiving bona fide and legal assurances in writing that his monies would be managed and dispensed according to his agreed upon wishes.  In short, the donation/bequest was made as part of a two-party contract.

Historically, there has been a debate in how much and for how long charitable organizations should honor their donors’ wishes.  As early as 1789 Thomas Jefferson weighed in to James Madison his strong opinion on donors setting aside real estate in perpetuum for a designated religious or charitable purpose.  Jefferson said, “The Earth belongs to the living, and the dead have neither powers nor rights over it.”  It might be a stretch, but one can see that sentiment applied to land, the desired uses of which may change over the passing decades as the country grows.

Leftwing political theorist Emma Saunders-Hastings teaches at Ohio State that philanthropy is a “deeply political activity” which gives the rich an outsized sphere of influence in a democracy, especially “in public life and by putting in place paternalistic relationships between donors and their intended beneficiaries."  In sum, it promotes inequalities that should have no place in democracies.  In her recent Private Virtues, Public Vices (2022) she argues against the notion wherein ‘donors claim to know, better than gift recipients, how their monies should be spent, placing donors’ ideas about what is best ahead of those of the beneficiaries.’

To many of us such a view about perpetuating donor values is a natural and acceptable given.  Donors give to an institution either because they believe in the concordance of their values with those of the institution, or they believe the institution is trustworthy and capable of promoting the donor’s values as prescribed and agreed upon.  Saunders-Hastings also has problems with the lion’s share of large donations coming from the rich whose values are definitely not those of the common folk, and therefore will perpetuate inequalities into the indefinite future, unless … .

Saunders-Hastings appears also being blind to a fundamental tenet of the nature of mortal humans.  Most people who are capable of enduring works see these as an extension of their being for those still living after they die.  Those with charitable instincts often see their wealth as delivering a twofer after they are gone – continuing to provide for a common good, and serving as a living memorial to a life well-lived and wealth well-placed.  To date, America has benefitted greatly from such donors of a wide range of means, who are not necessarily the claimed out-of-touch plutocrats. (more here and here)

But we return to the main question – when the donated money was left in trust, is it ever ethical for society to then later violate that trust; and, if so, under what conditions should that be possible without communicating fraud to potential donors and shutting off the funding of good works?

Comments

[Scott O]

There are and will always be folks that are quite certain they have a much better idea of how your money should be spent than you do whether you are alive or dead.
I remember well the fight over the Buck Foundation money in Marin County. I was astonished that the courts would even consider to hear the case. It went on for years with gleeful lawyers racking up thousands of billing hours squabbling over the pile o' dough.
Honey has always had the power to attract flies.
A charitable trust or foundation is set up on the rule of contract law. It has become quite the fashion lately for people to decide unilaterally that a contract is a thing to be simply ignored, or better - torn up. As this sort of business continues, expect more folks to be less inclined to trust the govt to enforce the law. And that is not a good thing.