Background
Does a church have a legal right to deposit a donor's check following the donor's death? Church treasurers may be surprised at the answer to this question. Consider the following example: Don is a member of First Church. Don attends services on Sunday and deposits a check in the amount of $1,000 for the building fund. Don has a fatal heart attack on Sunday night. Does the church have the legal right to deposit this check on Monday? This issue was addressed by a Virginia court in a recent ruling.
A 51-year-old man suffered from a heart condition. Fearing that death was imminent, he wrote a check in the amount of $50,000 payable to the woman he had lived with for 20 years (the 2 never married), and handed the check to her. The donor died the next day, but before the woman deposited or cashed the check. She deposited the check a day later. Several weeks later the executor of the decedent's estate asked a court to order the woman to return the $50,000 on the ground that it was not a valid gift since it had not been "delivered" to her prior to the decedent's death. The executor argued that a valid gift must be delivered, and that a check is not delivered until it is cashed or deposited by the recipient. Mere physical delivery of the check to the recipient is not enough.
The court's ruling
The court agreed with the executor that the woman had to return the $50,000. It reasoned that a valid gift must be "delivered," and that a check is not delivered until it is cashed or deposited by the recipient. Further, if a donor dies before the recipient cashes or deposits the check, then no legal "delivery" can occur even if the recipient later cashes or deposits the check. The court observed:
Because a check does not operate as an assignment of the funds, mere delivery of a check does not place the gift beyond the donor's power of revocation and the check simply becomes an unenforceable promise to make a gift …. Until a check is paid the donor retains control and dominion over the funds and the gift is incomplete; the donor could stop payment or write another check for the funds payable to a third person, or the donor may die, thus revoking the donor's command to the bank to pay the money.
What did the court mean? Simply this—a gift of a check is not complete until it is "delivered," and a check is not delivered until it is accepted by a bank (by either cashing it or accepting it for deposit). Until it is cashed or deposited, the check can be canceled or revoked by the donor. One way that this can happen is if the donor dies before the check is cashed or deposited. A donor's death, according to the court, revokes "the donor's command to the bank to pay the money."
What this means for churches
Why is this case relevant to church treasurers? It demonstrates an important principle—a check that is deposited in an offering or mailed to a church may not represent a legal gift if the donor dies before the check is cashed or deposited by the church. This can occur in a number of ways. For example, a church member dies unexpectedly of a heart attack or in a automobile accident after contributing a check to the church but before the check is deposited.
Tip. If a member of your church dies before you deposit one or more of his or her checks, the checks may not represent valid gifts. Our recommendation—check with your banker or a local attorney to determine your rights under state law. If the check is not a valid gift, then you may have to cancel or return it, and of course no contribution credit would be given to the deceased member.
Woo v. Smart, 442 S.E.2d 690 (Va. 1994)
