Trusts groupu 4 - unincorp assoc. Flashcards
Re Endacaott
Crts reluctant to allow Ts to work outside ‘gifts of imperfect obligation’
Policy underlying Unincorp. Assoc rules
Encourage community benevolence
If the gift to Unincorp assoc = non-chrtbl then…?
may fail - defeats s’or intention & policy of community benevolence
Conservative v. Burrell
Unicorp Assoc =
2+ mbrs;
bound for common purpose;
mutual rights and duties;
rules govern who controls assoc. & how funds are used.
Mbrs - must be able to join/leave at will;
no legal personality;
contract holding theory - donor can ask for funds back if Assoc. is wound up
Re Recher
gifts for Unicorp assoc = problematic ; gifts can be made in 4 ways : 1) outright gift; 2) Gift on Trust for assoc's purpose; 3) T. for mbrs & future mbrs; 4) outright gift to mbrs as JTs subject to contractual obligations (contrave holding theory)
Denby sick & benevolent fund
Brightman J - 4 ways for dissolution:
1) Voluntaily wound up by mbrs;
2) an event leads to automatic dissolution;
3) permanent loss of substratum;
4) winding up by crt
Unincorp. Assoc. Methods of holding property
If Excess money held by mbrs / treasurer - it goes to mbrs on dissolution equally; money not based on contributions but mbrshp.
1) Outright gift;
2) trust for purpose of assoc.
3) T. for mbrs (inc. future)
4) Gift for mbrs subject to contractual obligations
Outright Gift
Each mbr takes prop as gift & holds on JT/TIC - any mbr can sever;
Re Grant - rare unless clear evidence of intention;
cocks v manners - any ambiguity in gift & crt looks to nature of gift - money is likely split, land is not (thus R.T.)
Re Grant;
Vinelott J - unlikely for U.A. mbrs to hold on JT unless clear evidence of Sor intention;
* contract holding - mbrs can vote to change rules & thus do what they want with property;
Cocks v Manners
If any ambiguity in gift to U.A. then crt looks to nature of property for intention - if money - then can be slplit b/twen mbrs, if land, cannot be split & more likely R.T.
T. for purpose of Assoc.
neither Chrtbl no under exception thus likely to fail & = R.T. back to S’or
Case Leahy v Ag NSW - mbrs need to be able to do what they want w/ the property
Leahy v. A/G NSW
Members need to be able to do what they want with the property - T. or purpose of assoc is likely to fail if not Chrtble nor under exception & gift goes back on R.T. to S’or
T. for mbrs inc. future ones
Possible IF:
- current mbrs hold Prop. on T. for selves & future mbrs;
- complies w/ rule of perpetuity; (leahy)
- perp. prd = 80 yrs - must vest in ALL mbrs by this time;
problems: mbrs fluctuate - what happens to those who leave?;
how wld shares be allocated btwn new mbrs & long time ones?
Gift for mbrs subject to contractual obligations
- prop cannot vest in club b/c club not a legal personality;
- prop vests in mbrs for time being & ownership determined by rules of club;
Advs - causes no perpetuity problems b/c property vest immediately;
DisAdv - May go against S’ors intention;
Dissolution - assets distributed in what way?
1) Automatic Resulting Trusts;
2) Bona Vacantia;
3) Contractual obligations;
How does asset distribute under Automatic Resulting Trust
If assoc. funds are held on T. for mbrs, then on dissolution, the surplus goes on R.T. to contributors in proportion w/ contribution;
PROBLEMS - unworkable with street collections - Gillingham bus
* wld mean dead member’s estates wld get a share - Sick & funeral society
Unincorp Assoc - Gillingham Bus
dissolution of unincorp assoc - Auto. R.T. - handing money back to donors on R.T. = unworkable where donors are non-discoverable;
Unincorp.Assoc - Sick & Funeral society of St. John
Unincorp.Assoc. - disslution - Auto. R.T. = problem b/c dead mbr’s estates entitled to a share
Bona Vacantia
when Unincorp.Assoc dissolves - surplus prop. from gifts to go to crown - Re West Sussex Constbulary;;
Re Bucks - Limited to only when Club = moribund ( no mbrs left)
Re Bucks
Unincorp.Assoc. dissolution - surplus funds go to crown but only when club has no more mbrs left;
Re West Sussex Consabulary
Goff J - outward looking clubs - no intention for mbrs to keep gifts - surplus shld go to crown.
Unincorp.Assoc - Contract Obligations
Re Bucks - Walton J :
- Use of funds determined by contract binding club mbrs;
- surplus dealt w/ as determined by rules of club;
- if nothing express, implied rule = shared equally;
Benefit - makes sense - if pre-dissolution the assets are held by mbrs subject to contract, then on dissolution, ownership shld be absolute
political parties as unicorp.assoc
cannot hold assets under contract holding theory - Conservatives v burrell - donor can ask for funds back on dissolution of political unincorp.assoc.