Donor’s Charitable Intent and Its Enforceability in Court

Evelyn Brody (Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology) has recently published her article entitled From the Dead Hand to the Living Dead: The Conundrum of Charitable-Donor Standing, 41 Ga. L. Rev. 1183 (2007).

Here is an excerpt from the introduction to her article:

For hundreds of years, scholars and practitioners have debated the central position of donor intent in Anglo-American law – the right of the “dead hand” to govern from the grave the use of a charitable donation into the indefinite future, even into perpetuity. The topic of this Article is not, however, that normative position, but rather the seemingly more mundane question of whether the donor can enforce his or her intent in court. As Professor Rob Atkinson cautions: “Standing questions are ‘who’ rather than ‘what’ questions. . . . Technically speaking, [a denial of standing] is merely a determination that the claim, however meritorious, should be asserted by someone else.” Consider the following four scenarios:

Case 1: D gives $100,000 to C University to establish a fund to support library operations.

Case 2: D gives $100,000 to C University to establish a fund to support library operations. C agrees that D may bring suit to specifically enforce the restricted gift.

Case 3: D gives $100,000 to C University to establish a fund to support library operations. C agrees that D and D’s descendants may bring suit to specifically enforce the restricted gift.

Case 4: D gives $100,000 to C University to establish a fund to support library operations, but that if C University does not carry out the purposes of the gift, the gift shifts to H University.

This Article considers whether these four cases provide D with the same rights to enforce the charity’s performance of the gift, and, if not, whether they should be the same.