Charitable Trusts- Religion

Question 1

s3(4) of the Charities Act 2009

Answer 1

Trusts for the advancement of religion benefit from a presumption of public benefit

Question 2

s45(1) of the Charities Act 1961

Answer 2

In the past this presumption was not rebuttable but now it is rebuttable

Question 3

s3(6) of the Charities Act 2009

Answer 3

Trusts for the advancement of religion shall be interpreted in accordance with the laws, canons, ordinances and tenets of the religion concerned.

Question 4

s3(10) of the Charities Act 2009

Answer 4

For the purposes of this section, a gift is not a gift for the advancement of religion if it is made to or for the benefit of an organisation or cult:
a) The principal object of which is the making of profit, or
b) That employs oppressive psychological manipulation-
c) of its followers, or
d) for the purpose of gaining new followers

Question 5

Religion in English Charities Act 2011

Answer 5

Section 3(2)(a) includes: (i) A religion which involves belief in more than one god; (ii) A religion which does not involve belief in a god

Question 6

Religion in English Charities Act 2011

Answer 6

1. Belief in supreme being
2. A relationship of reverence
3. A system of belief
4. It promotes a positive, ethical framework

Question 7

Karen Kavemeth Le Lisroel Ltd v IRC

Answer 7

Lord Hanworth MR described advancement of religion as ‘the promotion of spiritual teaching in a wide sense, and the maintenance of the doctrines on which it rests and the observances that serves to promote and manifest it.

Question 8

Neville Estates Ltd v Madden

Answer 8

‘As between different religions, the law stands neutral, but it assumes that any religion is at least better than none’.

Question 9

Article 44 of the Irish constitution

Answer 9

The Irish constitution provides protection for religions.

Question 10

Quinn’s Supermarket v. AG

Answer 10

Notwithstanding the ‘Christian’ nature of the document.

Question 11

Thornton v Howe

Answer 11

A trust to spread the works of Johanna Southcott was held to be religious. She claimed she was pregnant by the holy spirit and would give birth to the Messiah.

Question 12

Thornton v Howe

Answer 12

Cross J stated that ‘the court makes no distinction between one religion and another, unless the tenants of a particular sec teaches doctrines adverse to the very foundation of all religions’.

Question 13

Re South Place Ethical Society

Answer 13

A group whose focus was learning and spreading ethical principles and encouraging rational religious thought could not classify as a religion because it lacked worship of a god.

Question 14

Approach in Ireland?

Answer 14

It appears that a broad application

Question 15

Unusual Potential Religions

Answer 15

1) Temple of the Jedi Order- ‘based on the observation of the force’.- Invalid- lacking seriousness
2) Gnostic Centre for the Advancement of Gnosticism- Focus on belief that the world was created by a lesser god and there is a higher true God somewhere- lacking clear moral framework

Question 16

Unusual Potential Religions

Answer 16

3) The Druid Centre- Focused on paganism- had the required belief in a supreme being and had ethical framework- Valid
4) Celtic Druid Temple- Had been given charitable status by the Irish Charities Regulatory Authority

Question 17

R (Hodkin) v. Registrar General of Births, Deaths, and Marriages

Answer 17

The UK SC held that Scientology was recognised as a religion- however, this was not in the context of charitable trusts.

Question 18

Church of Scientology case by the Charity Commissioner UK

Answer 18

Registration of Church of Scientology for charitable purposes was rejected as practices were not concerned with ‘worshipping’ a Supreme being. Instead, focus was on counselling, auditing, and study. However, Virgo notes that the broader definition of religion was introduced in 2006 and present in the 2011 Act would now suggest that it could be registered as a charity.

Question 19

Scientology in Ireland

Answer 19

Application of the rules set out in s3(10) of the 2009 Act.

Question 20

Gifts for celebration of masses

Answer 20

Contentious area prior to section 45(2) of the Charities Act 1961 but protected generally under s3 and the presumption of public benefit for religious purposes.

Question 21

Celebration of Masses

Answer 21

Differing approach in Ireland and England

Question 22

England- In past legality doubted

Answer 22

Statute of Chantries 1547- though to be illegal
Bourne v Keane- not illegal but not necessarily charitable
Re Caus- Charitable
Gilmour v Coats- Led to doubt as to whether they were charitable

Question 23

England- Present position

Answer 23

Re Hetherington- Gift for saying of masses prima facie valid as for religious purposes. However, if masses are not said in public, this would not suffice. Ultimately, such gifts should be interpreted as far for rites being said in public if such a construction possible.

Question 24

Celebration of masses- Irish position

Answer 24

Statute of Chantries did not operate in Ireland
Saying of masses recognised in Commissioner of Charitable Donations and Bequests v. Walsh and Read v Hodgins.

Question 25

Ireland: AG v Delaney

Answer 25

A Gift for the saying of masses for the deceased and her brother was not allowed as there was no requirement that they be said in public. If such a stipulation has been included, then they would have been charitable.

Question 26

Ireland: Misinterpretation of Delaney

Answer 26

Subsequently to Delaney, gifts for masses were rejected even if it was specified that they were to be said in public.

Question 27

Misinterpretation of Delaney- seen in Kehoe v. Wilson

Answer 27

In this case a gift for masses ‘to be celebrated in Ireland in a church open for public worship at the time of such celebration’ was deemed not to be charitable.

Question 28

Kehoe v. Wilson

Answer 28

This position was not applied in AG v Hall.

Question 29

Ire: O’Hanlon v. Logue

Answer 29

CA held that trusts for the saying of masses were valid even where public element not specified.

Question 30

Ire: Old section 45(2) Charities Act 1961

Answer 30

It is hereby enacted that a valid charitable gift for the purpose of the advancement of religion shall have effect and as respects it having effect, shall be construed in accordance with the laws, canons, ordinances and tenets of the religion concerned.

Question 31

Ireland: Present Position

Answer 31

Gifts for the saying of masses are valid.
Section 99 of the Charities Act 2009 sets out that the sale of mass cards without an arrangement with the proper authority is an offence.

Question 32

General Gifts

Answer 32

‘Religious purposes’ means charitable purposes unless the context indicates that this is not the case.
Arnott v. Arnott- A gift for ‘religious purposes’ - charitable
Re Salter- Mention of charitable and religious purposes- charitable

Question 33

Section 49(1) of the Charities Act 1961

Answer 33

Where even if some non-charitable purposes- the charitable purposes will be recognised. Where any of the purposes of a gift includes or could be deemed to include both charitable and non-charitable objects, its terms shall be so construed and given effect as to exclude the non-charitable objects and the purpose shall, accordingly, be treated as charitable.’

Question 34

Other example of general gifts for religious purposes

Answer 34

Copinger v Crehane- A gift for ‘the advancement and benefit of the Roman Catholic Religion’.= valid charitable trust.
Re Brown- A gift ‘to the Christian Brethren’= valid
Dunne v Duignan- Gift to ‘foreign missions’ = valid. Missionary purposes did not suffice- Scott v Brownrigg.
Jackson v AG- Gift to Presbyterian missions and orphans= valid.

Question 35

Gifts to Ecclesiastical Office Holders

Answer 35

Gifts to particular offices will be valid but gifts to individuals holding a post will not be allowed.
Thornber v Wilson- The test is ‘whether the testator designates the individual as such, or as being the person who happens to fill the office’.

Question 36

Gibson v Representative Church Body

Answer 36

Bequest to the chaplain of Rotunda Chapel and his successors was valid. Bequest to the chaplain personally holding the post at the time of the testator’s death was not valid. Similar approach in Donnellan v O’Neill.

Question 37

Past Problems where office holders could decide how to dispose of the trust funds:

Answer 37

1) Dunne v Byrne- Gift to an archbishop and his successors in a manner which the archbishop might consider ‘most conductive to the good of religion’ was found to be invalid.
2) Fairly v Westminster Bank- A gift to a vicar and churchwardens ‘for parish work’ was too broad and therefore invalid.

Question 38

Gifts to Religious Orders: Historical position

Answer 38

s.28 of the Roman Catholic Relief Act 1829- categorised certain male religious orders as illegal. This meant that a gift to such an order would be void.
s.5 of the Government of Ireland Act 1920- repealed the 1829 Act. But could such gift be considered charitable even after the removal of illegality?

Question 39

Old approach: Re Byrne

Answer 39

A gift in a will was made ‘for the absolute use and benefit of the Jesuit Order in Ireland’. At first instance it was found to not be a charitable gift and invalid due to uncertainty. On appeal the Supreme Court also found it not charitable as although most of the work of the order was charitable, not all of this.

Question 40

Old position: Cocks v Manners

Answer 40

If a trust was not exclusively charitable it would fail. This was problematic for contemplative orders as we saw previously when we examined purpose trusts. One such trust failed here as the order found to be exclusively charitable in purposes- but was allowed as a purpose trust which benefited the members as we saw previously. Approach applied in Ireland in Re Wilkinson’s Trusts.

Question 41

Contemplative Orders Problems before the presumption of public benefit

Answer 41

Ire: Commissioners of Charitable Donations and Bequests v McCartan- ‘Monasteries- such institutions- not charitable’

Question 42

Change of Approach in Ireland: Maguire v AG

Answer 42

A gift to create a convent ‘of perpetual adoration’ was found to be charitable.

Question 43

Bank of Ireland Trustee Co Ltd v Attorney General

Answer 43

A gift to make repairs to the buildings of a contemplative order of nuns was found to be charitable.

Question 44

Section 45(1) of the Charities Act 1961

Answer 44

sets out that there was a ‘conclusive’ presumption that gifts for the advancement of religion had public benefit. This was also echoed in s3(4) of the Charities Act 2009.

Question 45

Miscellaneous Religious Gifts

Answer 45

Re Gare; Cresswell v. Cresswell- Gifts for erecting or maintaining a church are valid.
Re Vaughan- Gifts for the upkeep of churchyards and cemeteries are valid charitable purposes.
Re Quinn- A gift to maintain a cemetery was valid.
Re Eighmie- Could be used as a workaround for the restrictions on maintaining specific tombs by giving a gift to maintain all tombs in a cemetery- would not be able to include specific instructions for specific however. Unclear what position is re residences for priests and clergy- most cases in area of rates calculation where more strict rules apply.

Question 46

Public Benefit

Answer 46

As public benefit is presumed in this area. We do not need to consider it for this specific area of charitable trusts. Note that in England this is not the case. Celebration and Felicitations.