Should Charitable Trust Enforcement Rights Be Assignable?
Joshua C. Tate
Southern Methodist University - Dedman School of Law
October 25, 2009
Chicago-Kent Law Review, Vol. 85, pp. 1045-1072, 2010
SMU Dedman School of Law Legal Studies Research Paper No. 50
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.
Number of Pages in PDF File: 28
Keywords: charitable trust, philanthropy, assignment, settlor, standing
JEL Classification: K12, K41
Date posted: October 26, 2009 ; Last revised: May 30, 2010