May 11, 2017 LOS ANGELES, CALIFORNIA (SUN)
A Last Will and Testament ("Will") is not the preferred method for a denomination to insure the use and protection of assets held by its leaders, preachers or teachers. Even if such an individual properly executes a Will and provides an original to the GBC EC, a few days later or anytime later that Testator (the one whose will it is) can simply revoke that Will. That is called "freedom of testamentary disposition" which is recognized not only in Common law countries (the United States and the 53 Commonwealth countries), but also in Civil Law countries on the European Continent. "The testamentary freedom is expressed through the free choice of the form of will, free determination of its content, revoking the will etc." http://www.law-review.mk/pdf/07/Angel%20Ristov.pdf (on the first two pages). For example, in German law §2302 BGB, contracts to make wills are stated to be not enforceable. http://dejure.org/gesetze/BGB/2302.html.
Instead of a Will, in most countries the preferred method of accomplishing what the ISKCON GBC would want is the trust form. All devotees, including sannyasis, who hold a substantial amount of gifts or other assets that are supposed to be dedicated to the purposes of the ISKCON GBC, would be required to put all of those funds into an irrevocable trust. The beneficiary of the trust would be the ISKCON GBC or another ISKCON entity not controlled by that individual devotee. In that way protection from change of use is established not only for the time when the devotee passes away, but for anytime before that.
I have spoken to several senior ISKCON sannyasis who inform me that currently a sannyasi may deposit funds into his own personal account or into an account of a nonprofit corporation that he and his disciples control. If such a sannyasi decides that he no longer wants to work under the authority of the ISKCON GBC, he may, under law, take the money and uses it for anything he wants. For example, he could purchase a house in his own name. But, if there was a proper trust, even though the sannyasi could be the only trustee, when and if such a person leaves the control of the GBC, the named beneficiary, an ISKCON entity, would have standing in court to seek an order that the assets be re-dedicated to the religious purposes that the money was originally dedicated to. There may be some variations in different countries and the trust may also have a requirement that any checks over a certain amount and expenditures over a certain amount would require the approval of an ISKCON GBC-appointed person. When a trust may not be used, another form, like a charitable corporation, may be used.
Srila Prabhupada liked trusts. He set up at least 3 trusts. The trust system actually already exists for Indian sannyasis and it is enforced by Indian courts even when there is not a written trust (which is known as an "express trust"). Srila Prabhupada's renunciation of property to his Society follows not only the tradition for sannyasis in general, but also the example of his Guru, Bhaktisiddhanta Sarasvati Maharaj, who controlled 64 maths. That history is given in detail in a Calcutta High Court ruling of 1999:
"During the lifetime of Bhakti Siddhanta Saraswati as many as 64 maths were established in India and abroad between 1919 and 1936.
...[Bhaktisiddhanta Saraswati Swami] was the original founder of the deities and of the debuttar [temple] estate of Sree Chaitanya Math, Mayapur and the subsequent acquisition of the properties were also, as found accretion to the said debuttar estate...That such properties by reason of dedication, express or implied, become an accretion to the original debuttar estate is now a settled law."
Samit Pani Brahmachary vs. Mayapur Chaitanya Math, AIR 1999 Cal 132, which is available at http://goo.gl/dOZZQA
In Chapter VIII of The Law Relating to Hindu and Mahomedan Religious Endowments (1905) author Pudukota R. Ganapathi Iyer states that sannyasis did not hold a matha in for themselves but for the institution, citing to the examples of Sankarachaya, Ramanujacharya and Madwacharya, http://goo.gl/TNXCIE and in a footnote wrote that the properties "do not descend to the disciples."
The type of property that a sannyasi would own and not be holding in trust for his religious institution would be only his personal property that he could "use", like clothing, phone, and computer. Therefore, we would expect that, besides having a small account that would be for one's own use, a sannyasi or other preacher would agree in writing (in the trust declaration) that he is holding assets in trust for the religious institution. In section 7.21A of his Tagore Law Lectures on Hindu Law of Religious and Charitable Trusts, fifth edition (1983) B.K. Mukerjea related:
"Yajnavalkya, as stated already, has laid down special rules for succession to the property of ascetics who have been divided into three classes, namely, Brahmacharis, Vanaprasthas or hermits and Sannyasis or Yatis. These rules imply that ascetics can have property, though commentators like Vijnaneswar, Mitramisra and others have explained the text as referring to the books, clothes, sandals and other articles which are necessary even for an ascetic"
The principle of sannyasa, which, of course, developed in India, appears to provide a presumption that property except for that which is used by the sannyasi, such as his clothes and shoes, would be granted, right after acquisition, by the sannyasi to his religious institution. That is the tradition and Srila Prabhupada did not order any change to that.
Mukerjea continues on page 33, in commenting on the nature of temples and maths, "The idea of a corporate personality as distinct from that of the individual members was recognised by the Smriti writers... It seems that the different corporate bodies had their own laws and regulations which were enforced by the King."
The GBC has a duty to keep track not only of those personal accounts but also of the accounts of religious entities, like nonprofit corporations, that were started by such individuals or persons affiliated with him. An "Oath" signed by such a devotee, such as the "Oath of Allegiance" that we see on the GBC site is faulty because it names the beneficiary as "ISKCON" which is not a legal entity and, therefore, the named beneficiary should be replaced with the "ISKCON Governing Body Commission, a West Bengal Religious Association" or the specific name some other ISKCON entity. The GBC members would need to sign a properly worded oath and not just speak it out-loud. Then it would be enforceable in a court of law.
After I wrote the above to several sannyasis and to some GBC members who are not sannyasis, one member of the GBC asked me why the Oath of Allegiance is not sufficient to protect assets. That GBC member asked me specifically what was the problem with having in the Oath "ISKCON" or "International Society for Krishna Consciousness"? The problem is that, by using a term that does not refer to a specific juridic entity, no entity has standing in court to enforce the trust should the devotee use part or all of those named assets for his own personal use after changing his mission in life. Curiously, the GBC Association has given the term "ISKCON" an expansive meaning, equating it to the "Hare Krishna Movement", (http://scrible.com/s/4ffQO) and clearly, that Movement would include some entities that are way beyond their control. In any case "ISKCON" is not a satisfactory designation for the beneficiary of a trust or nonprofit corporation. Under trust law, when the beneficiary is designated as a large, undefined group of individuals or entities, none of the individuals or entities have standing in court to enforce the terms of the trust. The California Supreme Court explained how the common law [which is still in force throughout most of the English-speaking world] addresses with the problem, "Beneficiaries of a charitable trust are ordinarily indefinite and therefore unable to enforce the trust in their own behalf." https://goo.gl/ncXBsu. Therefore, it is important to have definite beneficiaries and not "ISKCON". The Poverty Law Journal explains, "Individual beneficiaries of trusts were thought to be too numerous and indefinite to achieve standing to sue on their own behalf." https://goo.gl/9TSF6z (page 17). Therefore, the GBC will need to make sure that there is a beneficiary named for the trusts other than "ISKCON".
I recommend a standard trust declaration document be used for this purpose, but, if the GBC Association is not going to adopt a standard declaration of trust form, then at least it would want to make the Oath of Allegiance enforceable. If the GBC Association does not want to replace in the Oath the word "ISKCON" with the "ISKCON Governing Body Commission, a West Bengal Religious Association", then it would need to replace "ISKCON" with some other entity. For example, the oath for a devotee who holds his assets primarily in the U.K. could have, as the beneficiary, an ISKCON charity in the U.K.. For a devotee whose assets would be primarily in U.S. bank accounts, then a U.S. entity, such as "International Society for Krishna Consciousness of California, Inc." or "ISKCON Inc. (New York)" could be designated as beneficiary.
The multi-volume treatise Scott on Trusts reports at § 86.4, "An interest that has not come into existence cannot be held in trust." Therefore, annually, the sannyasi would, in writing, add his recently acquired assets into the trust.
In addition to insuring the beneficial use of a sannyasi's accumulated assets that are presently in personal accounts, the GBC Body has a duty to insure the good use of assets that are held in entities, such as nonprofit corporations, that are ostensibly not the assets of the sannyasi, but, which are, in fact, controlled by them. For example, if a sannyasi sets up a nonprofit corporation in California with the name "Hare Krishna of West Los Angeles, Inc." the GBC Body must require an annual accounting from that corporation and require that the GB Commission has the power to appoint at least one member of the Board of Directors, even if that corporation is not a temple. Otherwise, a sannyasi could easily control a corporation by having the Board composed only of himself and a couple disciples. He could then attempt to avoid putting his assets into a trust. By putting them in such a nonprofit corporation. The nonprofit corporate form does provide some protection because state law requires their assets to be used for charitable, religious or educational activities. But the nonprofit corporation still could be used for non-Krishna Conscious purposes, for example, when controlled by a person who has deviated into new age philosophy. Therefore, additional controls are needed and those controls are enabled when the corporation has at least one GBC-appointed director. Of course, the articles of incorporation of that corporation would state that all assets are to be used to spread Krishna Consciousness as defined by the ISKCON GBC.
Another problem with the Oath of Allegiance, as it is presently worded, is that it attempts to effect assets that are not owned by the particular devotee. It only attempts to protect "ISKCON's funds, assets and properties under my control or direction, including anything ISKCON may have acquired under my direction". Assets that are already in the name of an "ISKCON" entity, whether a limited company (Ltd), nonprofit corporation or charity, are not at all affected by that Oath when the individual only holds one board seat among many, because he does not officially control or direct those funds. The designation of the property that is subject to the Oath is flawed as it does not address the individual's own assets. He may have received hundreds of thousands of dollars in gifts that were donated with the understanding by the donors that the funds were to be used in the mission to spread Krishna Consciousness. Those funds are not addressed in the Oath as they are arguably not "ISKCON" assets. At least the ISKCON laws should include something like Canon Law #1267 of The Roman Catholic Church which provides at § 1, "Unless the contrary is established, offerings given to superiors or administrators of any ecclesiastical juridic person, even a private one, are presumed given to the juridic person itself." http://goo.gl/Kas87o
The only other major denomination that has persons in the renounced order are the Roman Catholics. The different renounced Catholic Orders have their own specific rules and they generally provide that there is no personal ownership of assets. For example, the Jesuits have published the text of a vow of poverty at https://goo.gl/KR9QRP.
The Jesuits explain, "The vow of poverty helps a Jesuit to live more simply. He renounces personal ownership of material possessions, seeks greater solidarity with the poor, and shares all goods in common in imitation of the early disciples of
Jesus." https://goo.gl/JMiyGv (page 6)
The Dominicans also take a vow:
"Relying on divine providence in imitation of Christ and the apostles, we live as poor men sharing all we earn and all we are given. As mendicants we live in simplicity and detachment, ready to move and to adapt for the sake of the preaching of the gospel. Living simply and even austerely as Jesus did, we grow in freedom and our preaching gains credibility. Evangelical poverty creates a solidarity among ourselves and with the poor, especially those closest to us. We observe it also by working hard at the tasks we have been given, and by our efforts to promote economic justice and a spirit of sharing amongst people." https://goo.gl/na83gR (starting at the bottom of page 11.
A Catholic Priest, Dwight Longenecker, wrote about Benedictines:
"...the Rule of St Benedict does forbid private ownership
of any kind. A Benedictine monk does not take a vow of poverty, but he lives under a
rule of no personal possessions. The monastery owns stuff. In fact, a monastery could be
very wealthy. However, it is all owned in common, and each individual monk makes use
of what is owned in common, but does not own it himself." https://goo.gl/AK3p1N
Father Longenecker wrote in reference to both the Benedictines and the Franciscans, "Both ways call for a radical rejection of private ownership". The Franciscans are the largest religious order in the Roman Catholic Church. https://www.britannica.com/topic/Franciscans
I welcome any comments. My public email address is below.
May 5, 2017
Attorney at Law
3755 Watseka Ave Suite 201
Los Angeles, CA 90034