Article on Equitable Deviation

Virginie Roveillo (Conservation Law Center, Bloomington, IN)recently published an article entitled, Don’tMeans Don’t! . . . Unless It Doesn’t – Bending the Rules with EquitableDeviation, 27 Prob. & Prop. 50 (September/October 2013).  Provided below is the beginning of herarticle:

For a novice in charity matters, the idea of giving wealthin the form of a charitable trust raises four initial questions: (1) Why do wegive?  Well, it’s complicated.  Boiled down to basics, giving our wealthbenefits both others (the public and the government) and ourselves (our egosand our taxes).  (2) How do we give?  We either give with instructions (restricted)or without instructions (unrestricted). (3) Why restrict a gift?  Humannature.  It’s human nature to want tomaintain some control over our wealth, even after it goes to a public purposeand even after we die.  But, it’s alsohuman nature to anticipate that same instinct (the desire to control wealth) inothers, particularly in those we place at the controls of our wealth.  (4) Are there ways to get around charitablerestrictions?  Yes.  Persuasively ask a court and hope for theAttorney General’s approval.

This article is about how one man’s restriction, adhered tofor some 350 years, was finally undone, and how neither the Attorney General(AG) nor the probate court seems to have fully contemplated the legal dutiesunder Massachusetts trust law.  On hisdeath in 1660, William Paine left a piece of land in Ipswich, Massachusetts,known today as Little Neck, in trust for the benefit of the Ipswich publicschool, with the following caveat: “The said land not to be sold nor wasted.”  In 2010, the trustees, embroiled inlitigation triggered largely as a result of mismanagement, parted with afoundational piece of the trust’s history: they sought and were grantedpermission to deviate from Paine’s instructions and sell Little Neck.