13 September 2019 | Comment | Article by Gareth Wisdom
There are numerous myths, misunderstandings and misconceptions around the will writing process and in particular what can, can’t and shouldn’t be put in a will. It is human nature to come up with reasons not to do something. The biggest reason for such a large proportion of the population dying intestate (without a will) is general apathy. We all know we need a will, we just come up with excuses not to write one; “I’m too busy”, “I’ve got enough to worry about”, “my other half will get everything anyway”. These are just a few examples of excuses we commonly hear from people putting off writing a will.
At Hugh James, we aim to battle against people’s general apathetic nature by offering as many different service delivery methods as possible (online, telephone and face to face service options). There are always reasons why someone may think they don’t need a will. In actually preparing a will, an individual doesn’t have to worry about it anymore or indeed continue to make reasons why they shouldn’t. For more information visit our wills service page.
One topic that does often come up during the will writing process (and a reason that many write a will in the first place) is the ability to name a charity as a potential beneficiary under the terms of a will. Legacy income is an invaluable source of funds for charities and allows them to continue to support so many good causes. However, a common myth which prevents many people from considering charities as a potential beneficiary under their will is the belief that in leaving a legacy to a charity in their will, they will be pestered by that charity or other charities to donate more during their lifetime.
Solicitors owe all of their clients a duty of confidentially. This means that, without their permission, we cannot discuss any aspect of their will with anybody else during their lifetime. Therefore, unless expressly requested by that client, we would not contact a charity, organisation or individual on their behalf to notify them of the intended bequest. Of course the individual client may choose to speak with a chosen charity personally to discuss leaving them a legacy in the will.
How a charity uses any information provided by the testator (someone who has made a will or given a legacy) needs to comply with all legal requirements relating to data protection, most notably those contained in the Data Protection Act 2018 and the General Data Protection Regulation (GDPR). Charities need to be very careful that they do not use (or “process”) personal data provided to them unless they have a lawful basis for doing so. There are also strict obligations to provide clear information to individuals about the ways in which the information they provide to a charity may be used by that charity. These safeguards, which have been strengthened since the introduction of the GDPR (and which include much more severe penalties for organisations who misuse personal data) should provide a level of comfort to testators who are minded to hand over personal details in the context of leaving a legacy.
Further, the Information Commissioner’s Office has also confirmed that fundraising and the promotional and campaigning activities of charities, are covered by the definition of direct marketing. Alongside the data protection regulations, the Privacy and Electronic Communications Regulations (PECR) place additional restrictions on direct marketing by electronic means. This means that, with limited exceptions, marketing through emails, text messages and recorded telephone calls should only be carried out with the consent of the individual concerned. Individuals are also able to register with the Fundraising Preference Service to indicate that they do not wish to be contacted at all for any direct marketing purposes.
For further information on any of the topics covered in this blog, please view our wills service page or our GDPR service page.
Remember a charity week | 9 to 15 September 2019
Remember A Charity Week is an opportunity for charities and supporters to come together and raise awareness about leaving gifts in wills to charities, after taking care of family and loved ones. Hugh James is proud to support the week which this year focuses on debunking some common myths around legacy giving. As part of that we are publishing a series of blogs demystifying common myths around charity legacy giving. Follow @HughJamesLegal on Twitter to keep up to date with all our blogs.
For this year’s theme, Remember a Charity are using nostalgia and humour to address some common misconceptions associated with legacy giving to show that it’s something everyone can do. They have created a series of comedy films inspired by a classic TV show from the 1970s, which are available to watch on their YouTube channel here.