Scrutiny looms for bequests to closing churches
Gifts and bequests to churches in the Boston Archdiocese, potentially totaling millions of dollars, could come under legal scrutiny in weeks to come, following today's announcement by Archbishop Sean P. O'Malley on which churches he will close.
O'Malley's decision will set off a lengthy probate court process as the archdiocese seeks to determine if it can take over bequests that were left to the soon-to-be shuttered parishes.
Numerous gifts are made each year by parishioners either outright, through living trusts, or as bequests in their wills for purposes ranging from purchase of a stained-glass window , funding to funding a school scholarship or the reading saying of Mass for a loved one.
Some bequests are onetime gifts; which those are the most likely to be turned over to the archdiocese, legal experts probate specialists said. However, they said, other legacies are made on an annual, ongoing basis annually, and are more likely to undergo legal review, particularly if the donor made a specific request for how the money was to be used at the now-closed church.
Under the canon law O'Malley is using to consolidate the archdiocese, all proceeds from the sale of the closed parishes' properties and other assets will go to a separate archdiocesan fund, and, because of the constitutional separation of church and state, no outside agency has jurisdiction over that process.
But lawyers who specialize in the field of bequests say court approval will be necessary for the archdiocese to keep some gifts already established for churches. Some lawyers and officials who oversee the state's probate court system said the archdiocese must look at the intent of the person or people who made each gift and bequest before determining if the archdiocese can take control of the money, if it should be given to another charity designated by the deceased, or if the funds should be returned to the heirs.
"The archdiocese has to proceed very cautiously here," said Suffolk Probate Registrar Richard Iannella. "The ultimate authority here is the court, not the archdiocese."
The precise amount of bequest money that may be at stake is unknown. The archdiocese itself received $2.8 million in gifts and bequests in fiscal 2003. But the total given to individual parishes over the years has yet to be determined. The Rev. Christopher J. Coyne, spokesman for O'Malley, said he did not know the specific figure, but said the amount "has to be well within the millions" of dollars.
One Boston pastor interviewed said he receives between $25,000 and $100,000 annually in bequests from parishioners, while another said he receives "less than $10,000" every year.
Coyne said that while the archdiocese hopes to retain as much of the money as possible, it realizes it must look to each donor's stated intent before taking control of the money.
If a bequest was made directly to a church without any stated purpose for how the money was to be spent, and the church is to be shuttered, the archdiocese believes it can take control of the money, he said, "but if it went for a specific activity or fund within the [parish], that's more complicated."
Coyne said the church would have "no problem" in seeking court guidance about what to do with the money in instances where there are legitimate questions.
Where a specific purpose was stated for the gift, such as improving Catholic education in the neighborhood, the court could decide that instead of diverting the money to the archdiocese, the bequest should go to a neighboring church that is taking in the students and parishioners of the church that is closing, probate lawyers said.
"It has been an established doctrine that goes back hundreds of years that a court can modify a bequest, if the specific intent has lapsed or been satisfied," said Jeffrey A. Baskies, president of the Boston-based journal Lawyers Weekly.
Charles E. Rounds Jr., professor of trusts law at Suffolk University Law School, said much depends on what action, if any, is taken by the office of Attorney General Thomas F. Reilly. Even though state law exempts churches from filing annual financial reports with the attorney general's office, Reilly's overall supervision of public charities and charitable giving could prompt him to seek a court review of any individual bequest. He could also seek a general review of how the archdiocese intends to proceed with the bequests to the closed churches, even if the archdiocese believes such a review isn't necessary.
A spokesman for Reilly's office said yesterday he didn't know if Reilly would take any action.
However, Elizabeth D. Weber, who practices law in Lynn, said lawyers who are involved with estates that make annual bequests to any of the churches being closed will probably ask for court guidance. Weber said her firm is asking a probate judge to determine if a bequest in a will to a Catholic high school should be carried through if the school has undergone a reorganization.
"No one wants to be accused later on of having made a donation that was outside of the intent of the deceased," Weber said.
Kevin Cullen of the Globe staff contributed to this report. Stephen Kurkjian can be reached at kurkjian@globe.com. 