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Should Charitable Trust Enforcement Rights Be Assignable?

28 Pages Posted: 26 Oct 2009 Last revised: 30 May 2010

Joshua C. Tate

Southern Methodist University - Dedman School of Law

Date Written: October 25, 2009

Abstract

In recent years, scholars have given much attention to the problem of charitable trust enforcement. Departing from the common law, section 405(c) of the Uniform Trust Code provides that “[t]he settlor of a charitable trust, among others, may maintain a proceeding to enforce the trust.” This Article addresses the question of whether, and to what extent, a settlor’s right to enforce a charitable trust should be assignable to third parties. Should the law permit the settlor of a charitable trust to assign her enforcement rights after the creation of the trust, or should assignments be recognized only if they are spelled out in the trust instrument? How many potential assignees may the settlor properly select? Once the right has been assigned to a third party, should that third party also retain the right of assignment, so that the right can potentially be passed from one individual to the next in perpetuity? What would be the ramifications of granting a right of assignment to the settlor’s personal representative? Any resolution of these issues must protect the interests of charitable beneficiaries, but also be fair to trustees and not overwhelm the courts with frivolous litigation.

Keywords: charitable trust, philanthropy, assignment, settlor, standing

JEL Classification: K12, K41

Suggested Citation

Tate, Joshua C., Should Charitable Trust Enforcement Rights Be Assignable? (October 25, 2009). Chicago-Kent Law Review, Vol. 85, pp. 1045-1072, 2010; SMU Dedman School of Law Legal Studies Research Paper No. 50. Available at SSRN: https://ssrn.com/abstract=1493967

Joshua C. Tate (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States
(214) 768-2791 (Phone)

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