Unincorporated Associations

Question 1

4 things needed for a UA to come into existence

Answer 1

Conservative and Unionist Central Office v Burrell

1) 2 or more people
2) bound by mutual contract (giving rise to mutual rights and duties)
3) association has rules to determine who controls it and its funds and terms this control is exercised
4) possible to join and leave at will

Question 2

Construing gifts to UAs (general)

Answer 2

UA’s have no legal personality so courts have to construe what donors mean in a meaningful way

Question 3

Leahy v AG of South Wales

Answer 3

Viscount Simonds - if nothing else is known about A’s intentions, a simple gift to a UA is deemed a gift to the members of the club at date of gift

(easily displaced by evidence)

Question 4

MANDATE ANALYSIS

Answer 4

Conservative Central Office v Burrell

Brightman J - when A contributes funds to the UA she can choose to keep ownership but give treasurer mandate to add money to general funds and spend it accordingly - once this is done mandate is irrevocable
(until then, she has a right to restrain/make good a misapplication of a fund)

Question 5

Trust for present members

Answer 5

unlikely because Saunders

Question 6

Trust for present and future members

Answer 6

difficult because perpetuities problem

Question 7

CONTRACT HOLDING ANALYSIS

Answer 7

outright gift to present members as an accretion to UA’s property to be dealt with according to the rules by which the members are contractually bound

• would have happened in Burrell if Conservative Party was a UA with membership bound together with rules (no rules here exactly)
• re Reacher

Question 8

Courts want to be flexible with validating gifts to UA so use contract holding analysis even if requires flexible interpretation of facts

Answer 8

but won’t apply if:

• impossible to find express/implied contract binding all members of the body (e.g. political parties)

Question 9

If A intends her property to be used for a particular purpose

Answer 9

this doesn’t mean A necessarily intended to create a trust - so doesn’t necessarily preclude contract holding analysis! (e.g. like motive)

Question 10

Re Reacher’s Will Trusts (when might contract holding analysis not apply)

Answer 10

Brightman J emphasized that contract holding analysis applied “in the case of a donation which is not accompanied by any words which purport to impose a trust”

Question 11

Re Bowes

Answer 11

Ref to PURPOSE:

seen as a MOTIVE for the gift not evidence of intention to impose an absolute restriction on use of property

Question 12

Re Thompson

Answer 12

court may be keen to find no trust was intended to ensure that gift can be validated under contract-holding approach

Question 13

Re Lipsinki’s WT

Answer 13

testator gift made for “Hull Judeans Association in member of my late wife, to be used solely in the work of constructing new buildings for the association”

Oliver J stated it was a Re Reacher gift because it is “common sense”

Question 14

If the trust is found, and it is a purpose and not charitable, beneficiary principle applies – gift is not valid

Answer 14

UNLESS Re Denley’s can be used

Question 15

Trust for UA’s CHARITABLE purpose also counts

Answer 15

no difficulties with B principle or perpetuities

Question 16

Neville Estates Ltd v Madden

Answer 16

Cross J sets out three possible interpretations of a testamentary gift to an unincorporated association:
1. Absolute gift to the current members as joint tenants

2. Absolute gift to the members where those members will hold the property subject to the terms of the contract between them in their capacity as members
3. Gift in trust to be applied for the purpose of the body

Question 17

Re Recher’s WT (case itself)

Answer 17

Brightman J MR had to construe a gift to London province anti-vivisection society

look at wording
- does testator intend gift to members to do whatever they want?

• is it a gift to present and future members?

if NO then you can use contract holding analysis

Question 18

DISSOLVING UA

Answer 18

money goes to MEMBERS regardless of where they came from

- because money paid is a gift bound by UA contract no strings attached (Re Reacher)

Question 19

Dissolving UA (originally)

Answer 19

Originally courts not willing to make same analysis for external donors and raffle tickets (only giving money from subscriptions back to members) – Re West Sussex

Question 20

Hanchett-Stamford v AG

Answer 20

Lewison J: when only two people left, they are JT of property who agreed to apply it to rules of association

When the penultimate person dies, last person has survivorship so absolutely entitled

Refused to follow Walton J’s dictum in Re Bucks II (said assets in this case goes bona vacantia back to crown)