Bequests and Gifts to the Church Under the Code of Canon Law
Bequests and Gifts to the Church Under the Code of Canon Law
Reverend Daniel J. Ward
Follow this and additional works at: http://scholarship.law.stjohns.edu/tcl Part of the Religion Law Commons Recommended Citation
REVEREND DANIEL J. WARD*
When a person desires to give a bequest or gift to an ecclesiastical
institution, various civil law concerns and formalities may be involved,
especially when the bequest or gift is substantial. The attorney assisting
the donor may have to deal with tax issues, trust fund requirements, and
the specified purpose of the bequest or gift. Oftentimes these concerns
relate to maximizing the benefit both for the donor and the beneficiary
and assurance that the gift is used for the designated purpose.
The church is also concerned about bequests and gifts, especially
from the viewpoint of the obligations undertaken by the ecclesiastical
beneficiary. Therefore, the code of canon law contains a section in Book V
entitled, "Pious Wills in General and Pious Foundations." These canons
must be considered by the ecclesiastical institution when it accepts the
bequest or gift. Further, if the donor takes into account these canons
when creating the bequest or gift, conflict of law, vagueness, and lacunae
issues may be avoided.
The purpose of this paper, therefore, is to describe the canonical
requirements and to examine some areas of possible concern.
It is important to understand the canonical terminology since the
terms are not part of the general American civil law parlance.
1. A pious cause is a donation given for purposes of religion and charity.
Canon 114 Section 2 gives the purposes: works of piety, of the
apostolate, or of charity, whether spiritual or temporal.
* St. John's Abbey, Collegeville, Minnesota
A pious foundation is a specific form of a pious cause. A
non-autonomous pious foundation "is a sum of money or its equivalent (goods
which can be turned into money eventually), given in any way to a
moral person, that is, a juridic person in the church, with the
obligation in perpetuum, or at least for a long time, to use the income to
have Masses said or for other well-defined ecclesiastical functions, or
for the performance of certain works of piety and charity."' It would
be similar to a trust fund. A pious foundation may also be
autonomous, that is, a juridic person which is an independent foundation or
A trust in canon law "is a transfer of ownership of property to one
person for the benefit of another."2
The person transferred to, a trustee, may be a physical or juridic
person. Further, the trust may be a pious cause in general or may be a
pious foundation. It is important in ecclesiastical law to distinguish
whether the trust is a pious foundation or not, since a pious
foundation is governed by special rules.
A PIOUS CAUSE
If a person bequeaths goods to an ecclesiastical institution, the code
of canon law has four requirements. First, the formalities of civil law are
to be observed, if possible, and if such formalities are neglected, the heirs
are to be advised that they still are bound to carry out the obligation of
the deceased.- Second, the intention of the deceased is to be fulfilled with
the greatest diligence." Third, the ordinary is to be the executor of the
will.' Fourth, if a trust is established, the trustee must inform the
ordinary of the trust.'
If a person makes a present or future gift to an ecclesiastical
institution, the code has three requirements. First, the intention of the donor is
to be carried out with "the utmost diligence."' Second, a trustee for goods
must inform the ordinary of the trust and its obligations.8 Third, the
ordinary must exercise a watchful eye in the safeguarding and
administration of the goods. 9
The important canonical requirement, therefore, is the involvement
of the ordinary, whether it is a bequest or a gift. In fact, if a will forbids
this, the forbidding clause is to be disregarded," and if a trust prohibits
involving the ordinary, the gift is not to be accepted." The ordinary is the
head of the diocese, if the disposition is to a diocese or institution subject
dthiseproetsoit,ioonr tihsetoheaadreloigfiaourseliignisotuitsutiensotirtuitnesti(tourtdioern osrucbojencgtretghaetrieotno).' i2f the
The seemingly problematic area is the requirement that the ordinary
is the executor of all pious wills. "Executor" in the code is not the same
as executor in the civil law. This is obvious from the canon, which
recognizes other executors.' 3 Rather, executor is used to describe the ordinary's
general duty: to ensure that the disposition is fulfilled. This is the general
duty of the ordinary, whether the disposition is a bequest or a gift. The
ordinary, therefore, has supervisory powers, such as seeking enforcement
of the disposition in the civil courts since the ordinary is the principal
representative of the recipient of the bequest or gift.
Administratively, a diocesan bishop or a religious superior must be
aware of, keep records of, and monitor all bequests and gifts given to
institutions under their supervision. For a diocesan bishop this will
involve inclusion of bequests and gifts and any administration thereof in
the annual report to the diocesan finance council, which is discussed
The general pious cause is the ordinary way bequests and gifts are
given to ecclesiastical institutions. A person may give money or goods in
general, or for a specific purpose; may give the disposition outright or
establish a trust out of which money will be distributed. The disposition
may even require obligations of the recipient. Nevertheless, in almost all
instances, the bequest or gift merely will be a general pious cause, and
will require nothing more than informing the proper ordinary and
accounting to the ordinary. These canonical requirements should govern
almost every bequest and gift to an ecclesiastical institution.
A Pious FOUNDATION
A pious foundation, which is a very specific type of a pious cause, is a
bequest or gift which entails a long-term existence. There are two types:
an autonomous pious foundation and a non-autonomous pious
foundation. The first is an aggregate of things established as a juridic person by
a competent ecclesiastical authority. 14 In other words, it is the
establish10 Id. at c.1301, § 3.
11 Id. at c.1302, § 2.
"2 Id. at § 3.
"3 Id. at § 2.
11Id. at c.1303, § 1(1).
ment of a charitable foundation or corporation resulting from a bequest
or gift, established for an indefinite period of time, under the auspices of
the church. Such a pious foundation would be a rare happening in the
everyday life of the church.
The non-autonomous pious foundation is "the temporal goods given
in some manner to a public juridic person with the obligation for a long
time, to be determined by particular law, to arrange for the annual
income for the celebration of masses or other specified ecclesiastical
functions or otherwise to pursue the purposes"" of piety or the apostolate or
charity. In practical terms, it would be a long-term trust fund, in the
canonical sense, managed by an ecclesiastical institution such as a diocese, a
monastery, or an institution of higher learning. It is not every
ecclesiastical trust but only those which carry a long-term obligation. Under
traditional canonical jurisprudence, "long-term" would be forty years. 6 Under
the new code, particular law must define "long-term," but if particular
law would not so define, then it would seem that forty years would be the
presumptive time period. The time period does not mean that the pious
foundation actually would last the requisite time period, but that it be at
least capable of lasting that period, which would be true if the pious
foundation were established for an indefinite period. The code does assume
that an endowment, such as an endowed chair at a University, would be a
non-autonomous pious foundation since such a chair is established
generally for an indefinite period of time.
If the pious foundation is autonomous, the law governing juridic
persons must be followed. Inherent in the establishing of such a foundation,
which must be done by written decree,1 7 is that the resources are
sufficient to achieve the designated purpose.1 8 The basic principle to be
followed is that the decree or the governing documents should contain all
the operating provisions. If such is the case, then the code generally will
recognize these provisions as controlling rather than the specific
provisions of the code. Therefore, it is necessary to examine the canons on
juridic persons, 9 juridic acts,20 and temporal goods2 ' prior to issuance of
the decree or governing documents to insure that these documents
contain the desired provisions which then generally may be permitted to
supersede contrary or undesirable requirements of the code.
If the pious foundation is non-autonomous, it cannot be accepted by
an ecclesiastical institution without the written permission of the proper
ordinary.22 The permission cannot be granted until the ordinary
ascertains that the institution can fulfill the obligations, and that there will be
sufficient income to support the obligations. Particular law may set other
conditions such as accounting procedures, investment requirements and
administrative details. It is important to coordinate these particular law
conditions with other universal law requirements governing financial
accountability,2 3 administration of goods, 2' and alienation of goods.25
The terms of a non-autonomous pious foundation must be in writing,
a copy of which is to be kept in the file of the ordinary and in the file of
the particular institution to which the foundation pertains. This writing
is necessary so that at a later date the institution can be certain as to its
obligations, and, if permitted, to the reduction of the obligations. If
investments are made, which generally will be the case, the investments are
made at the direction of the ordinary, but only after the ordinary consults
the interested parties and his or her finance council.
THE ADMINISTRATION OF GIFTS TO ECCLESIASTICAL INSTITUTIONS
Canon law, like civil law, obligates with special fiduciary obligations
those given responsibilities for gifts. The code specifically obligates the
administrator to such duties as accurate record keeping, arrangement of
insurance, presentation of an annual report, proper fiscal responsibility,
and the seeking of the consent of the ordinary for investment of surplus
income.2 ' The code specifically obligates the administrator to observe civil
law. In addition, the code requires accounting to the ordinary, 2' to the
diocesan finance council,2" and to the faithful concerning gifts they have
given to the church. 29 Since the fiduciary obligations under the code may
be more specific or greater than under civil law, the ecclesiastical
administrator may be exposed to greater liabilities under civil law since civil law
would probably recognize the canonical obligations, at least as contractual
elements of the administrator's duties.30
A major problematic area in management of long-term gifts is what
to do when the revenue is insufficient to support the obligation, or the
obligation itself becomes impossible to carry out. Well-drawn documents
should cover such circumstances. If this is done, the code recognizes the
provisions of the documents as governing.3' However, if the documents do
not provide for such circumstances, then the code establishes its own
provisions similar to the civil concept of "cy-pres." The provisions are
divided into those affecting mass obligations and those affecting other types
A mass obligation, termed a mass foundation, is the establishment of
an obligation of an institution to celebrate the mass for a particular
intention over a long period of time. Generally, a mass foundation is
established when a person bequeaths by will or gives by gift sums of money for
the celebration of the mass in perpetuum. The difficulty with such a
foundation is that the obligation is to be supported by the income from
the bequest or gift, and the income has become negligible, or worse, there
exists no separate account to determine the income or even the nature of
the obligation. If such difficulties arise, the diocesan bishop or the head of
the religious institution generally can reduce or transfer the obligation.
To abolish totally the obligation is reserved to the Apostolic See.32 The
attorney advising an ecclesiastical institution on the acceptance of a mass
foundation should point out the necessity to separate the funds of each
mass foundation and to document the obligation, its fulfillment, and its
reduction and termination provisions.
Obligations, other than masses, arising from gifts can be reduced by
the ordinary because of insufficient revenue or any other reason arising
without fault on the part of the administrator, but only after he or she
has consulted those concerned and the finance council.3 The "cy-pres"
principle of attempting to fulfill as much as possible the intent of the
donor governs the canonical reduction. Therefore, when an ecclesiastical
administrator petitions a civil court to reduce or change an obligation
arising out of a bequest or gift, the institution should first fulfill the
canonical requirements. To terminate a pious cause of any type prior to its
self-governing termination requires the intervention of the Apostolic
See.34 If a non-autonomous foundation automatically terminates, the
remaining principal is disposed of according to its terms. If no terms are
stated and the institution administering the foundation is diocesan, then
the principal must be added to the special diocesan fund for the support
of the clergy.3 5 The diocese or institution is not free to use the principal
as it sees fit. Both the donor and the institution should be advised of this
fact. In non-diocesan institutions, the principal belongs to the institution
to which the foundation was given, and the institution may use the
principal in whatever way it deems appropriate.
A possible area of conflict in terminations which do not specify for
what the principal is to be used, is when the institution is jointly
sponsored or owned by a diocese and a religious institute. Care must be taken
in both the governing documents of the institution and in the bequests
and gifts to minimize conflict in this area, as well as other areas not the
subject of this paper.
New financial requirements in the code are the diocesan finance
council 36 and the financial consultors or finance council required of all
juridic persons.37 Each institution subject to the diocesan bishop must
submit an annual report to the diocesan bishop, who, in turn, must
submit the annual report to the diocesan finance council.38 Practically
speaking, therefore, gifts given to diocesan-subject institutions are supervised
by a central board of the diocese through the annual report. Donors
should be aware of this since it gives some assurance of fiscal
The requirement that each institution have a finance council or at
least two financial consultors provides some assurance for donors that the
administration of bequests and gifts requires the involvement of more
than one person. The administrator must consult, before acting, the
council or consultors in a number of specified instances. 9
In order to be somewhat practical, let us examine a few instances of
bequests and gifts to provide some clearer understanding of the operation
of the canons.
1. A Gift of Land To Be Used As A Cemetery
If a person bequeaths or donates land for a cemetery, the following
canonical requirements must be considered: (a) informing and obtaining
written acceptance from the ordinary; (b) determining if the bequest or
gift constitutes a pious cause or a pious foundation, and if the latter,
whether, non-autonomous or autonomous; (c) establishing the governing
8 Id. at c.1304, § 2.
Id. at c.492.
s Id. at c.1280.
Id. at cc.1287, § 1 and 577.
Cf. Id. at c.1273(f).
provisions which must cover the issues surrounding termination. It would
seem that in such an instance, the cemetery would be a foundation, and
since it is meant to last an indefinite period of time, an income will be
derived from the grave charges.
2. A Chair At A Diocesan College
As stated above, an endowment generally is considered a
non-autonomous foundation since it is intended to last indefinitely. Therefore, an
endowed chair at a diocesan college requires: (a) informing and obtaining
written permission of acceptance from the diocesan bishop; (b)
ascertaining that the requisite obligations can be fulfilled and that the revenue
fully corresponds to the obligations; (c) detailing the provisions if revenue
becomes insufficient; (d) providing for termination. In the instance of the
diocesan college, if the chair fund were terminated and no provisions were
established by the donor that the principal belongs to the college, under
canon law the principal would have to be given to the clergy support
fund, which may cause difficulties under civil law and be contrary to the
supposed intent of the donor.
A Bequest Of $200,000 "ForMasses"
An issue which arises often in the bequest for masses is how many
masses for how much money? In a recent will, a monastic community was
left $200,000 "for masses." At the particular diocesan stipend, this would
total 40,000 masses. Therefore, since the code states:
If the sum of money is offered for the application of the masses without an
indication of the number of masses to be celebrated, the number is to be
computed in view of the offering established in the place where the donor
resides unless the donor's intention must be lawfully presumed to have been
The community would have to send out the money to numerous
other persons because the community could not reasonably fulfill the
bequest itself. But then the community would not receive the actual benefit
of the bequest. Perhaps the money could be established as a mass
foundation, the income of which would be used for the celebration of masses
each year. But this too may prove to be unrealistic because there would
still be too many masses required each year.
In most instances as this, the presumed intent of the donor was to
leave a large gift to the institution, which in turn would pray for the
deceased. An exact quid pro quo would not have been intended. Thus, the
presumption stated at the end of canon 950 may permit a different result
40 Id. at c.950.
than the 40,000 masses in the problem. This would be consistent with the
canons on pious causes which emphasize the donor's intention. But it is
still difficult to ascertain the donor's intent and civil law may prohibit
arriving at the reasonable solution of some masses in perpetual memory
for the $200,000.
This example, therefore, points to the need of attorneys drafting wills
to have some knowledge of canon law to avoid absurd results, such as
4. A Gift Of Money For A Specific Purpose
If a person gives a gift for a specific purpose, it is to be used for that
purpose. Generally, this should not prove difficult, unless the specific
purpose will not occur until the future. For instance, suppose the donors give
the money for a new cross in a church, but the cross is not acquired for
ten years because the church administrators cannot decide on the cross.
What must be done with the money? Canon law would require
segregation of the money, investment with the interest applied to the principal.
Unfortunately, often ecclesiastical administrators are unaware of this, and
tend to comingle funds. At the end of the ten years, when a cross costs
more and new donors are sought, the question is who gave the cross, in
memoriam of whom?
At times a donor may desire to remain anonymous. However, since
the code requires informing the ordinary and in some instances reporting
to a finance council, the attorney should advise all concerned that the
donor's anonymity must be protected.
6. Retirement Fund
Certain questions occasionally have arisen on whether a retirement
fund, separately incorporated, is a pious foundation, and therefore subject
to the canons under discussion. A separately incorporated retirement
fund would be a juridic person under canon law if established by decree
of the ordinary, which should be done to protect the corporate veil in civil
law. However, a pious foundation results from a bequest or gift, not
merely from separate incorporation. Thus, a retirement fund would not
be a pious foundation and would not be subject to the canons under
Mass Obligation Reduction
Generally, various institutions subject to the diocesan bishop or
religious superior have accepted over the years mass obligations, that is to
celebrate a mass on a particular day for a particular intention in
perpetuum. A sum of money was given, for instance $25.00, in 1900.
What should have happened was that the $25.00 should have been put
into a trust and invested, the annual income being used to pay the
stipends. However, in many situations this was not done, nor even if it
would have been would the interest necessarily pay the stipend. Further,
the institution may have so many of such intentions scattered throughout
the year that oftentimes they are forgotten or not able to be fulfilled on
the specific day.
Canon law permits the ordinary to reduce the obligation if the
income is insufficient and to transfer the obligation to another day. In the
instant example, the obligation could be changed to only every so many
years, perhaps even grouped with other intentions, and transferred to one
single day or to a day in a period when other obligations are said.
The civil law issue arises, however, whether the church can do this on
its own. It would seem that person intended to give and institutions
intended to receive in accordance with the laws of the church. Thus, the
powers of the ordinary could be presumed to be part of the donor's and
In conclusion, it should be recognized that bequests and gifts to
ecclesiastical institutions are governed both by civil and canon law. An
attorney working with an ecclesiastical institution, therefore, is advised to
have some working knowledge of canon law in order to do the utmost to
fulfill the legal requirements of both laws and to avoid unnecessary