Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Friday, September 13, 2013

Article on Equitable Deviation


Virginie Roveillo (Conservation Law Center, Bloomington, IN) recently published an article entitled, Don’t Means Don’t! . . . Unless It Doesn’t – Bending the Rules with Equitable Deviation, 27 Prob. & Prop. 50 (September/October 2013).  Provided below is the beginning of her article:

For a novice in charity matters, the idea of giving wealth in the form of a charitable trust raises four initial questions: (1) Why do we give?  Well, it’s complicated.  Boiled down to basics, giving our wealth benefits both others (the public and the government) and ourselves (our egos and our taxes).  (2) How do we give?  We either give with instructions (restricted) or without instructions (unrestricted).  (3) Why restrict a gift?  Human nature.  It’s human nature to want to maintain some control over our wealth, even after it goes to a public purpose and even after we die.  But, it’s also human nature to anticipate that same instinct (the desire to control wealth) in others, particularly in those we place at the controls of our wealth.  (4) Are there ways to get around charitable restrictions?  Yes.  Persuasively ask a court and hope for the Attorney General’s approval.

This article is about how one man’s restriction, adhered to for some 350 years, was finally undone, and how neither the Attorney General (AG) nor the probate court seems to have fully contemplated the legal duties under Massachusetts trust law.  On his death in 1660, William Paine left a piece of land in Ipswich, Massachusetts, known today as Little Neck, in trust for the benefit of the Ipswich public school, with the following caveat: “The said land not to be sold nor wasted.”  In 2010, the trustees, embroiled in litigation triggered largely as a result of mismanagement, parted with a foundational piece of the trust’s history: they sought and were granted permission to deviate from Paine’s instructions and sell Little Neck.


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