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Academic - Trusts Law > Charitable and Non-Charitable Purpose Trusts > Flashcards

Charitable and Non-Charitable Purpose Trusts Flashcards

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1
Q

What are the two exceptions to the beneficiary principle?

I.e. there must be Bs who can enforce the terms of the trust

A
  1. Charitable purpose trusts
  2. Non-charitable purpose trusts (specific, exceptional cases; the ‘Endacott’ exceptions)

Both can be trusts without having Bs

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2
Q

What does the rule against perpetuities say about purpose trusts?

aka rule against inalienability of capital

A

If non-charitable purpose trust = VOID if it locks away capital for more than 21 years

Eg: I give £40,000 to my Trustees so that they may use the income to maintain the changing rooms at my tennis club’. This will be void, because income comes from capital (which would have to be locked away) and in the absence of a provision specifying the trust ends within 21 years, the trust is void.

C.f ‘I give £40,000 to my Trustees so that they may build changing rooms at Beeston tennis club’ This does not offend the rule against inalienability of capital as trustees can spend capital.

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3
Q

What are the benefits of trusts having charitable status?

A
  • Exempt from beneficiary principle and rule against inalienability
  • More flexible regarding certainty of objects
  • Cy-pres doctrine
  • Tax benefits
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4
Q

How are the rules on certainty more flexible for charitable purpose trusts than private trusts? What can C do if there is an uncertainty as to how intention should be carried out?

Re intention

A
  • Sufficient there is an intention to apply property for charitable purpose
  • If uncertainty as to how intention is to be carried out = T can direct that property be applied for such charitable purposes as they select
  • Court will strive to resolve any uncertainty and hold trust valid once charitable intent established

I.e. 3 certainties more flexible

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5
Q

How does the rule against remoteness of vesting (125 years) apply to charitable trusts?

Indetfinite?

A
  • The property held on charitable trust must vest in the charity within that period
  • But capital which vests in the charity’s trustees will continue to be held by its Ts and used for purpose unless property runs out; can exist indefinitely (if well managed)

Cf usual trusts which are extinguished once capital distributed to Bs

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6
Q

For non-charitable purpose trusts, how must purposes be so defined? And how is uncertainty of objects treated?

A
  • Purposes must be so well defined that if Ts surrendered their discretion, the court could carry out the purposes declared
  • Will be void for uncertainty of objects if (means of achieving) purpose is unclear

Usual certainty of objects rules apply to non-charitable purpose trusts

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7
Q

What are the 3 requirements for charitable purpose trusts?

First being for charitable purpose

As per Charities Act 2011

A

The trust must …
1. Be for a charitable purpose
2. Satisfy public benefit test
3. Wholly and exclusively charitable

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8
Q

What is a ‘charitable purpose’?

1st requirement for a CPT

A

One of the 13 heads of charity

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9
Q

What are the 12 heads of charity?

A
  1. The prevention or relief of poverty
  2. The advancement of education
  3. The advancement of religion
  4. The advancement of health or the saving of lives
  5. The advancement of citizenship or** community development**
  6. The advancement of the arts, culture, heritage or science
  7. The advancement of amateur sport
  8. The advancement of** human rights,** conflict resolution or reconciliation or the promotion of religious or racial harmony or equality and diversity
  9. The advancement of environmental protection or improvement
  10. The relief of those in need because of youth, age, ill-health, disability, financial hardship or other disadvantage
  11. The advancement of animal welfare
  12. The promotion of the efficiency of the armed forces of the Crown or of the efficiency of the police, fire and rescue services or ambulance services
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10
Q

What is the further head?

A

The extra head of charity allowing the recognition of further charitable purposes by reference to previous case law and analogy to recognised charitable purposes

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11
Q

What is covered by the prevention or relief of poverty? Destitution? Temporary?

1/12

A

Poverty does not mean ‘destitution’ = ‘going short’ (can be lesser poverty but still poverty)

  • Purpose is to relive hardship so can include helping unemployed, building hostels for asylum seekers and helping the impoverished during disasters)
  • Can be temporary (financial hardship) or inferred (‘provision of soup kitchen’)
  • Must not benefit rich
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12
Q

What is covered by the advancement of education? Will it always cover an ‘increase in knowledge’?

2/12

A
  • Not confined to formal instruction in educational institution; can include training, research or broader education in development of individual capabilities
  • Wide range of organisations: museums, galleries, libraries, pre-schools, summer schools, teacher-training organisations, exam boards, DofE
  • Ancillary organisations e.g. SU (provided they further educational purposes)
  • Dissemination of knowledge (publication of law reports)
  • Will not cover increase in knowledge without element of educational value e.g. development of 40-letter phonetic alphabet or researching tiny details of Shakespeare plays
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13
Q

What is covered by the advancement of religion? What counts as a religious belief ? What must it be specifically for?

3/12

A

Religious belief =
1. Belief in god(s) or supreme being(s) which is focus of religion (or no god at all)
2. Relationship between believer and entity
3. Degree of cohesion, seriousness and importance
4. Identifiable positive, beneficial, moral framework

  • Must be for its advancement: promotion and spreading message among mankind (religious services and missionary work)
  • Also covers public masses celebrating dead; repair of churchyards; putting money aside to pay for future services; distribute religious publications etc
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14
Q

What is covered by the advancement of health/saving lives? Will it always cover unconventional methods?

4/12

A
  • Prevention/relief of sickness, disease or human suffering and the promotion of health
  • Covers unconventional methods but must have sufficient evidence for claimed benefits
  • Lifeboat associations and mountain/cave rescue missions
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15
Q

What is covered by citizenship/community development?

5/12

A

Rural and urban regeneration and the promotion of civic responsibility, volunteering, and effectiveness of charities

Focused on community rather than individual

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16
Q

What is covered by arts, culture, heritage or science? What must art be of? Will preservation of historic traditions always be covered?

6/12

A
  • Art needs to be of ‘merit’ which may require expert evidence
  • Monuments of cultural/historical significance (to private individuals unlikely to be charitable)
  • Preservation of historic land and tradition provided benefit can be shown (e.g. trust to foster study of Welsh language was held not charitable)
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17
Q

What is covered by the advancement of amateur sport? Must it be physical?

7/12

A

Sports/games that promote health by involving physical or mental skill or exertion e.g. football and chess

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18
Q

What is covered by the advancement of human rights? What objectives will this not cover?

8/12

A
  • Raising awareness of human rights issues, relieving victims and securing enforcement of human rights laws
  • Promotion of restorative justice and conflict resolution
  • Not political objectives like seeking to change law
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19
Q

What is covered by environmental protection? Will everything be worthy of conservation?

9/12

A

Both protection and improvement of environment - preservation and conservation of natural environment and sustainable development
* May need to produce expert evidence to show why something is worthy of conservation

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20
Q

What is covered by the relief of those in need?

10/12

A

Those in need because of youth, age, ill-health, disability, financial hardshup or other disadvantage - inc provision of accomodation or care (do not need to be in poverty!)

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21
Q

What is covered by the advancement of animal welfare? Any animal? What can this not be?

11/12

A
  • Providing for welfare of particular types of animals as well as animals generally (not particular animals e.g. S’s pet dog)
  • Also improving methods for slaughtering animals
  • Cannot be political e.g. pursuing abolition of vivisection (this would be a change in the law)
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22
Q

What is covered by the efficiency of public services?

12/12

A
  • Armed forces, police, fire and rescue, ambulance
  • Provision of educational resources and competitions for members of services
  • Provision of opportunities for services personnel to gain additional experience relevant for their jobs
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23
Q

What is the ‘general purpose’ category?

A

Recognises some purposes may not be captured in 12 heads; covers purposes which. are analogous to/within spirt of statutory heads of charity and earlier case law

Ensures flexibility

24
Q

What are the the two elements to the public benefit requirement? Is there a presumption of public benefit?

2nd requirement for CPT

A
  1. The trust purpose must have an identifiable benefit; and
  2. The benefit must accrue to (a sufficiently large section of) the public or

There is no presumption of public benefit

25
Q

What is an identifiable benefit? Must it be quantifiable? Will S’s belief count for anything?

A

Benefit must be capable of being identified and described even if it cannot be quantified or measured

  • Charity Commission may require evidence if benefit not obvious
  • S’s belief to benefit irrelevant

Eg: School for pickpockets might be educational but not beneficial

26
Q

What will the identifiable benefit be weighed against?

A

Any detriment or harm arising from purpose e.g. adverse effect on medical research might outweigh the benefit arising to welfare of animals by abolishing vivisection

27
Q

What is the 4 requirements for the requirement that the benefit must be to the public?

Applies for the advancement of education and other charitable purposes

A

Possible Bs must not be negligible in number; and

  1. Personal nexus test: personal linked by a relationship to a particular person/company are not a sufficient section of the public (eg: family / common employment)
  2. Class within a class test: Class of people who can benefit from a charitable purpose can be limited, so long as those limits are legitimate, proportionate, rationale or justifiable [eg: geographical restrictions]
  3. Charitable trusts must not exclude the poor
28
Q

Example of personal nexus

A
  1. “I give £250,000 to my Trustees for the education of the children of employees of Red Anchor Limited” = NOT chharitable as people linked by personal nexus (Oppenheim v Tobacco Securities Trust Co Ltd [1951])
29
Q

Example of class within a class test

… which states that the class of people who can benefit can be limited if its legitimate, proportionate, rational or justifiable given the nature of the charitable trust

A

IRC v Baddeley: Trust for the promotion of sports to residents of West Ham who were also Methodists not charitable. It constituted a sufficient section of the public but imposition of Methodist requirement was arbitrary

30
Q

Example of how charitable trusts cannot exclude the poor – can fee charitable schools charge fees?

A

Yes, as long as profits are ploughed back for a charitable purpose

  • If institution’s fees are so high that it can only be afforded by richer people it will affect its charitable purpose

Independent Schools Council v Charity Commission [2012] held that fee- charging schools with charitable status must operate in a way that does not exclude the poor if they wished to retain their charitable status by:

  1. Providing scholarships and busuaries
  2. Enabling local state school students to attend classes/summer schools

Level of assistance must be more than minimal and the higher the fee charged = the more benefit it must confer on wider public

31
Q

How is the public benefit requirement satisfied for the advancement of religion head?

A

The benefit to the public derives from mixing with others in a place of worship

Cf gift to community of cloistered nuns who did not mix with community

32
Q

Will a trust to relieve poverty amonst named individuals or ‘my family’ be charitable?

A

Named individuals = no
‘My family’ = yes

This is a generous rule and only applies to trusts for the prevention of relief of poverty –other trusts only benefitting the family are unlikely to be deemed charitable trusts.

33
Q

Will contemplative religious orders that are cloistered and have no contact with the outside world be charitable?

A

No

34
Q

What are the three conditions under which charities can focus on certain Bs?

A

Yes, provided that..
1. They have proper reasons for doing so
2. The poor are not excluded from benefit
3. The people focused on are a sufficient section of the public for the charity’s purpose.

35
Q

What does wholly and exclusively charitable mean?

3rd limb of the CPT test

A
  1. Trust must not have political purposes; and
  2. If charitable organisation charges fees, profits mught be ploughed back into the trust
36
Q

What do political purposes include?

A
  1. Supporting a political party; and
  2. Campaigning for a change in the law, policy or government decisions
37
Q

What distinction can be drawn in terms of political objectives in charitable trust and which can be charitable?

Charities cannot pursue political objectives; politically neutral for public benefit

A
  1. Political purpose = not charitable on public benefit grounds e.g. trust set up by Amnesty included objective of securing release of prisoners by procuring reversal of GOV policy

Eg: Amnesty set up trust including an objective to secure release of prisoners by revergsing government policy – trust was denied charitable status because involved changes in law + govt decisions

2. Use of political means to achieve a non-political objective = charitable e.g. organisation set up to protect environment carries out range of activities inc political activity aimed at changing GOV policy re airports

38
Q

What happens if institution realises a profit?

A

Must go back to charitable purpose

39
Q

Reminder! What are the 3 conditions for CPT again?

A
  1. Must have a charitable purpose
  2. Must exist for the public benefit
  3. Must be wholly and exclusively for charity
40
Q

Summary

A
41
Q

Examples

This is where ulaw chapter stops – rest is BPP

A
42
Q

If a trust has a mixture of charitable and non-charitable purposes, what must the non-charitable purpose be for trust to not be void?

A

If non-charitable purpose…

  1. Falls within recognised category of non-charitable purpose trusts
  2. Can be construed as ‘incidental or subsidiary’ to main charitable purpose
  3. Can be separated from charitable purpose and a portion of fund allocated to each; court severs trust and recognises charitable part
43
Q

What does the cy-pres doctrine do?

A

Provides for surplus funds of a failed charitable trust to be applied to another charitable purpose by way of a scheme established by Charity Commission or court

This avoids same consequence of a private trust failing: resulting trust to S (which would defeat intention of person who dedicated property to charitable purpose)

44
Q

What are five grounds on which the original purpose of a charitable gift be altered?

A
  1. Original purpose has been fulfilled/cannot be carried out
  2. Original purpose still workable but there are surplus funds
  3. Property from similar trusts is combined to be used more effectively
  4. Original purpose referred to an area or class of persons which is no longer relevant or suitable
  5. The purpose has:
    5a: Been adequately provided for by other means
    5b: Ceased to be charitable in law; or
    5c: Ceased to provide a suitable and effective method of using property
45
Q

What are the different results of a subsequent and initial failure (property cannot be applied to specific purpose from beginning) of a charitable trust/gift? Will both be applied cy-pres?

A
  • Subsequent failure = will be applied cy-pres as gift cannot go back on RT
  • Initial failure = it will only be applied cy-pres if S has shown general charitable intention
46
Q

How is a general charitable intention ascertained?

A

Court decides whether there was:
1. a specific intention to benefit particular object e.g. trust to provide rest homes where T created detailed plans for management of homes which was found to be inconsistent with general charitable intention or
2. a specific intention to give effect to a general mode of charity e.g. provision of a soup kitchen and cottage hospital for the parish of Shoredtich (charitable intention = benefit sick and poor of parish [so cypres will apply!)

Only in latter case can cy pres be applied for initial failure

47
Q

To be valid, what must a non-charitable purpose trust be and created by?

2 requirements

A
  1. Is a recognised exception of the B principle; and
  2. Created by will
48
Q

What are the 3 exceptions and what must they comply with?

From Re Endacott

A

Trusts for…
1. The maintenance of particular animals
2. The erection and maintenance of monuments and graves
3. The saying of private masses

Which must comply with the certainty and perpetuity requirements

Would all usually fail the public benefit test!

49
Q

Can the exceptions be extended by analogy?

A

No! The intended purpose must fall squarely within recognised exception to be valid

50
Q

Why are non-charitable purpose trusts falling within an exception referred to as trusts of imperfect obligation?

A

Because although court recognises their validity (so will not fail if included in will) they are not enforceable

51
Q

As non-charitable purpose trusts which fall within the exceptions are not enforceable, what must be done and what order will court make?

A
  • Check with appointed T that they are willing to carry out terms of trust
  • If so, court will make a Pettingall order = requires T to give undertaking to comply with trust
52
Q

What happens if a T does not comply with a Pettingall order?

A

Testator’s residuary legatees (who would otherwise receive the property) can sue to enforce undertaking and prevent misapplication of fund

53
Q

How does the rule against inalienability apply to non-charitable purpose trusts?
* When must it come to an end and can it be extended?
* Does the wait and see rule apply?

A
  • Trust must come to an end within 21 years unless extended by reference to a human life in being (in which case the 21 year period does not start until their death) e.g. £5,000 to my Ts on trust to maintain my grave for a period not exceeding 21 years following the death of the last surviving descendant of Queen Elizabeth II who is alive at the date of my death
  • The wait and see rule does not apply; must be certain at the time the trust is created that it will come to an end within the perpetuity period (otherwise trust will be void)
54
Q

Instead of a human life (in life + 21 years), can an animal’s life be used? Or can an express clause be ommitted if the trust should finish its purpose under 21 years e.g. building monumnet?

Trust to maintain an animal for the rest of its life

A
  • Human lives should be used - it cannot be said (although likely) that animal will definitely die and that trust will come to an end
  • Express clause should be included as it cannot be absolutely certain purpose will cease within 21 years
55
Q

Can more ambiguous perpetuity clauses be used that have been upheld in case law?

For so long as the Ts can legally do so

A

No guarantee these would still be upheld - drafter should always include an express perpetuity clause limiting duration of non-charitable purpose trust to ensure its validity

Academic - Trusts Law (14 decks)

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