Non-Charitable Trusts

Question 1

Re Dean

Answer 1

TIO for animals valid private purpose trusts - must comply with the perpetuity period.

Trusts for the maintenance of hounds & horses for 51 years. Seems to breach perpetuity rule, but perhaps the court thought that the animals will not outlive the perpetuity period.

Question 2

Re Hooper

Answer 2

Trust for the maintenance of graves & erecting monuments is valid so long as it is within the perpetuity period.

Question 3

Bourne v Keane

Answer 3

Valid NCPT if it complies with perpetuity period: saying of private masses

C.f. Re Hetherington, saying of masses can be a charitable purpose if the public is allowed.

Question 4

Re Endacott

Answer 4

Trustee left estate to parish to provide some “useful memorial to myself”.
U
CA: trust for NCPT not valid, although analogous to TIO to erect and maintain graves

Harman LJ the three anomalous cases should not be extended

Question 5

Re Thompson

Answer 5

Legacy to promote fox hunting valid because the legacy would be paid to the legatee giving him an undertaking (a promise giving him an obligation)

Question 6

Pettingall v Pettingall or “Pettingall” order

Answer 6

Prevent trustees from applying the property for a different purpose

Question 7

Re Denley

Answer 7

Trustees held land as sports ground for the use and employment of a particular company for 21 years from the death of the last survivor of the group.

Goff J: trust is valid despite a private purpose trust

It did not contravene the beneficiary principle, complied with the perpetuity rule, the trust was for the direct/indirect benefit of the individuals

Meaning that the individuals were not so indirect as to not have locus standi to enforce the trust. “Factual beneficiaries”

Question 8

Re Abbot & Re Gillingham bus disaster

Answer 8

Both trusts could have been construed as express private trusts with the beneficiaries being the people in distress

Favourably interpreted as trusts for purposes of benefitting the people in disaster but because of the great discretion to the trustees for the money used they are construed as purposes trusts

Question 9

Re Osoba

Answer 9

Residual estate for the wife, daughter until she goes to university and mother.

Purpose trust - the purpose of the trust was better construed as the purpose being merely the motive behind the trust.

Question 10

Re Andrews

Answer 10

Trust the boys of the clergymen once they have finished education.

Not a purpose trust, this was an intention to create a gift for the children (merely a motive)

Question 11

Re Tyler

Answer 11

Power attached to a gift

Testator left money to charity, gave the trustees the key to his family vault to keep in good repair, failure to do so would transfer the property to another charity.

Both gift and gift over not void for perpetuity, the condition (a power not a duty) did not create an obligation.

Question 12

Re Dalziel

Answer 12

Testatrix left a sum of money to a hospital on the condition that the income should be used for the repair of the family mausoleum, gift over to another charity if it fails. Gift over subject to the same condition.

Gift over void for being contrary to the perpetuity rule - duty was imposed on the hospital to maintain the mausoleum.

Question 13

Conservative Union v Burrell

Answer 13

Two key things:

(A) the definition of a UA: the association must be a non-for profit with two or more members bound by a set of rules/constitution.

Conservative party not a UA because it had various components (e.g. constituencies) not contractually bound together under a constitution.

(B) Agency appointment

Because it was not a UA the treasurer of the Conservative party appointed as an agent with the authority to enforce the purpose trusts.

Drawbacks of agency:

• ceases when the agent dies or becomes bankrupt
• ceases when the transferor dies; personal relationship and does not outlive the transferor, bad for wills

Question 14

Leahy v AG

Answer 14

Property left on trust for an order of nuns which was a UA

Trust void held for a non-charitable purpose of the order. Beneficiaries were not fixed or ascertainable as they were all around the world. Therefore the property could not have intended to belong to each nun beneficially.

NB: PC rejected that UAs are an exception to the NCPT invalidity rule

Question 15

Re Astor’s

Answer 15

Trusts for the purpose of fee press and relations between nations. Was drafted so it complies with the perpetuity rule.

Roxburgh J

Non-charitable purpose trusts are not valid because:

(a) no identifiable beneficiaries to enforce the trust c.f. AG for charitable trusts
(b) no identifiable purpose
- Roxburgh J rejected the contention of counsel that whenever the purpose is uncertain, the court should draw up a scheme to enforce the trusts. Schemes are only for charitable trusts.

Question 16

Neville Estates v Madden

Answer 16

Cross J: gifts for UAs can take effect in thee ways:

1. Trust for the members at the time
   Pro: perpetuity rule satisfied (members can dispose income or capital whenever) beneficiary principle satisfied

Con: unlikely to reflect donor’s intentions, beneficiaries can leave and sever their share even if they are no longer members.

2. Contract holding theory ( Re Rescher’s) property transferred to members at the time subject to their contractual rights from the UAs constitution
3. Trust for the NCP

Question 17

Re Rescher’s

Answer 17

Testatrix left her residuary estate to the London anti-Vivisection society which was amalgamated into the National Anti-Vivisection society.

Brightman J: gift failed, it could not be construed the gift for the members of the National Anti-Vivisection society subject to the contract that existed at the date of the testator’s will.

Essentially, he could not construe a gift for the members of a different society subject to a different contract

Question 18

Re Lipinsky’s

Answer 18

Testator left part of his residuary estate on trust for the UAS to be used SOLELY for the construction & improvement of association’s building.

Oliver J construed it as a bequest for the existing members subject to their contractual rights; to be solely superadded direction struck out. beneficiaries were ascertainable, they were entitled to enforce the purpose regardless of the “solely”.

NB: Oliver J was ready to uphold a Re Denley construction.

Question 19

Re Grants Will

Answer 19

Testator left his estate for the benefit of the Labour Party constituency association. Rules of the association granted that they were controlled by an external Commitee.

Vinelott J: gift failed, for the gift for the members subject to their contractual rights to be valid, it is elementary that the members can dispose of the property in any way they wish, or divide it between themselves beneficially. The beneficiaries could not do that here because they were controlled by an outside body.

Question 20

Re Horeley Football Club

Answer 20

When UAs are really big, likely to have different types of members - need to determine which class will benefit in the proceeds.

Trustees sought direction as to whether the club assets should be for “temporary members” or “associate members”

HC: beneficial ownership for adult members, because they could unanimously of at an AGM call for their assets to be transferred to them.

Question 21

Cunnack v Edwards

Answer 21

Society formed to raise funds for widows of deceased members. Society went moribund, issue with surplus.

Members were all deceased. Next of kin could not claim surplus assets through RT because members parted outright with their subscriptions when they paid them in return of their contractual benefits (that his widow would be provided for once the member died).

Property bona vacantia

Question 22

Re West Sussex

Answer 22

Fund established to provide for the widows and children of dead police force.

Fund from (1) contribution for past and present members - Bona vacantia; members were considered to have divested themselves if any interest in return for contractual benefits for their widows and children

(2) Proceeds from raffles - relationship between payers and association was a contract not trust, money paid to participate to enjoy entertainment which they had, so they divested themselves of their interests. BV
(3) anonymous contributors in boxes - donors parted with it completely with no intention that it should be returned. BONA VACANTIA
(4) other donations & legacies - RT

Question 23

Re Bucks Constabulary

Answer 23

Dissolution of UAs; contract holding theory; contractual entitlement

Dissolved society to provide for the relief of widows and orphans of deceased members of Bucks Constabulary. Funds from voluntary contribution of its members - no rules governing its surplus assets.

Walton J: assets to be divided equally against the members at the time, with the exclusion of the Crown.

Question 24

Hanchett-Stamford v AG

Answer 24

Membership of a UA anti-vivisection (not exclusively charitable so cry-pres could not be used) was reduced to two.

Only one member was left, and substantial assets left.

Lewison J: decided not to follow (obiter) Walton J’s suggestion that if there is one member left in a UA funds should go BV.
- contrary to Art 1 ECHR

Question 25

Re sick and funeral

Answer 25

Sunday school society gave sickness and death benefits for its members, juniors paid less subscriptions and some ceased to pay.

Society dissolved and the rules of the association was so that juniors could only be entitled to half-share of the assets compared to ordinary members and members who did not pay were entitled nothing.