{"id":20362,"date":"2026-10-31T13:16:21","date_gmt":"2026-10-31T02:16:21","guid":{"rendered":"https:\/\/chuatan.com.au\/?p=20362"},"modified":"2026-10-31T13:24:04","modified_gmt":"2026-10-31T02:24:04","slug":"bequest-charity-will-australia-planned-giving-capital-campaigns","status":"publish","type":"post","link":"https:\/\/chuatan.com.au\/en\/bequest-charity-will-australia-planned-giving-capital-campaigns\/","title":{"rendered":"Bequests and Planned Giving: Legal Issues for Australian Charities"},"content":{"rendered":"
\n

For many Australian charities, the largest gifts come not from an appeal but from a Will, a family funding a building, or a donor who wants a scholarship to carry a parent’s name. These gifts raise legal questions a board is wise to consider before the money arrives.<\/p>\n

This article outlines them, with a Victorian focus, and considers donors with family in Asia.<\/p>\n\n

Bequest programs: naming the right entity<\/h2>\n

A Will should identify the charity by its correct legal name and, ideally, its ABN, not a trading name, a former name or a description such as “the Chinese school in our suburb”. The type of gift matters too. A specific<\/strong> bequest leaves a particular asset or amount. A residuary<\/strong> bequest leaves all or part of what remains after debts and other gifts, and is often the most valuable and the most exposed if the estate shrinks or is challenged. A contingent<\/strong> bequest takes effect only if a condition is met, such as no family member surviving.<\/p>\n\n

When the charity changes name, merges or winds up<\/h2>\n

A simple change of name usually does not defeat a gift. A merger or winding up is less certain. Where Victorian incorporated associations amalgamate under the Associations Incorporation Reform Act 2012 (Vic), the Act generally reads a reference in a Will to an original association as a reference to the amalgamated one, unless the Will says otherwise. Other forms of merger may not have that protection.<\/p>\n

Where a charitable gift cannot take effect as written, the court may apply it to similar purposes under the cy-pr\u00e8s doctrine, usually through a scheme. This can depend on the will-maker’s wider charitable intention and when the gift failed. In Victoria, the Charities Act 1978 (Vic) widens the circumstances in which charitable property may be applied cy-pr\u00e8s, and allows schemes for smaller trusts to be approved by the Attorney-General instead of the Supreme Court. Some Wills let the executor choose a substitute charity.<\/p>\n\n

The charity’s role in the estate, and family provision claims<\/h2>\n

A charity named in a Will is a beneficiary, entitled to expect proper administration. The most common dispute is a family provision claim: in Victoria, eligible persons may apply under Part IV of the Administration and Probate Act 1958 (Vic), within strict time limits, and a successful claim can reduce a charitable gift. The board must weigh the donor’s intention against how a contest with the family may look to supporters.<\/p>\n\n

Gift acceptance policies<\/h2>\n

A gift acceptance policy sets out what the charity will accept and who decides: land or business interests, gifts with ongoing costs, gifts that may harm its reputation, and conditions it cannot meet. It gives the board a consistent basis for difficult decisions.<\/p>\n\n

Restricted gifts and gift agreements<\/h2>\n

An unrestricted gift can be used for any of the charity’s purposes. A restricted or tied gift must be used for a stated purpose and, depending on how it is made, may be held on trust, so the charity may not be free to redirect it later. A written gift agreement can deal with naming rights<\/strong> (including if the building is sold), endowments<\/strong> (whether capital must be preserved) and conditions<\/strong> (including if the purpose becomes impossible). Conditions that give the donor a material benefit may affect deductibility.<\/p>\n\n

Capital campaigns and pledges<\/h2>\n

In general terms, a bare promise to give is often not legally enforceable, because nothing is given in return. A pledge made by deed, or one the charity has relied on in a way that makes withdrawal unfair, may be treated differently. In practice, the issues are planning for unpaid pledges and documenting larger commitments.<\/p>\n\n

DGR status, gift funds and property gifts<\/h2>\n

A donation is generally deductible only if made to a deductible gift recipient (DGR) and only if it is a genuine gift with no material benefit to the donor. Depending on how it is endorsed, a DGR may need a separate gift fund for deductible gifts. Gifts made by Will are generally not deductible, though CGT on an asset left to a DGR by Will may be disregarded. A lifetime gift of land or shares may be deductible, but is generally a CGT event for the donor, valuation rules may apply, and the CGT rules change from 1 July 2027. Charities and donors should obtain advice from a qualified tax adviser.<\/p>\n\n

Fundraising regulation in Victoria<\/h2>\n

Fundraising appeals in Victoria are regulated by the Fundraising Act 1998 (Vic), administered by Consumer Affairs Victoria. ACNC-registered charities generally notify Consumer Affairs Victoria of their intention to fundraise instead of registering separately, and must follow the National Fundraising Principles, which Victoria has adopted in its regulations. National harmonisation was agreed in 2023 but, as at October 2026, remains incomplete, so a national campaign may face different state rules. The Australian Consumer Law may also apply where fundraising is conducted in trade or commerce.<\/p>\n\n

Family giving funds and donors from Asia<\/h2>\n

Some families give through a private or public giving fund (formerly called ancillary funds), which generally grants only to eligible DGRs; our separate article on private giving funds discusses these. Donors in Singapore, Malaysia, Hong Kong, Taiwan or mainland China may receive no Australian deduction, may face foreign exchange or reporting rules at home, and may leave bequests in Wills made overseas.<\/p>\n\n

A hypothetical scenario<\/h2>\n

Consider a Victorian cultural association that was left a residuary bequest for “the building fund” but has since merged with a sister organisation and sold its hall. The will-maker’s children say the gift has failed. The issues may include the gift’s wording, the form of the merger, cy-pr\u00e8s and a possible family provision claim. The right approach depended on facts that needed advice.<\/p>\n\n

Questions to discuss with your adviser<\/h2>\n