Non-charitable purpose trusts

Leahy v AG for NSW

'A gift can be made to persons (including a corporation) but it cannot be made to a purpose or to an object: so also a trust may be created for the benefit of persons as cestuis que trust but not for a purpose or object unless the purpose or object be charitable. For a purpose or object cannot sue, but, if it be charitable, the Attorney- General can sue to enforce it.'

Morice v Bishop of Durham

'Every ....... trust must have a definite object. There must be someone in whose favour the court can decree performance.'

Pirbright v Salwey

The testator bequeathed £800 for the upkeep of a burial enclosure of his child in a churchyard 'for as long as the law permitted.' Held: The trust was valid for a period of 21 years from the testator's death (the perpetuity period)

Re Thompson

The testator had left money to his friend Lloyd to be applied by him in such manner as he should in his absolute discretion think fit towards the promotion and furtherance of fox-hunting. This was upheld. Clauson J made a Pettingall order requiring Lloyd to give an undertaking to apply the money towards the object expressed in the testator's will and, in case he should apply the money otherwise than for this object, giving the residuary legatees leave to apply to the court.

Re Dean

A testator gave his horses, ponies and hounds to his trustees and charged his freehold estates with an annual payment of £750 for a period of 50 years for the upkeep of the animals, should they live that long. North J upholding the trust for a period of fifty years if the animals should live that long, relying on both Mitford v Reynolds and the monuments cases stated: 'Then it is said, that there is no cestui que trust who can enforce the trust, and, that the Court will not recognise a trust unless it is capable of being enforced by someone. I do not assent to that view. There is not the least doubt that a man may if he pleases, give a legacy to trustees, upon trust to apply it in erecting a monument to himself, either in a church or in a churchyard, or even in unconsecrated ground... Is there then anything illegal or obnoxious to the law in the nature of the provision, that is, in the fact that it is not for human beings, but for horses and dogs? It is clearly settled by authority that a charity may be established for the benefit of horses and dogs, and, therefore, the making of a provision for horses and dogs, which is not a charity, cannot of itself be obnoxious to the law, provided, of course, that it is not to last for too long a period.' Rejects beneficiary principle and offends the rule against perpetuities.

Pettingall v Pettingall

A trust for the upkeep of the testator's favourite black mare was upheld.

Mitford v Reynolds

By his will the testator bequeathed the remainder of his property to charity 'after deducting the annual amount that will be requisite to defray the keep of my horses'. There is no discussion in the report of the case about this aspect of the case but the report tells us that 'the order directed the costs of all parties to be taxed, and made provision for the maintenance of the testator's horses.'

Bourne v Keane

It was held that such trusts were capable of being valid. The HL did not determine the question, though, whether such trusts were capable of being charitable (under the head of advancement of religion)

Re Denley

Land was given on trust to be used as a sports ground primarily for the benefit of employees of a named company for twenty one years from the death of the last survivor of a group of named individuals. The trustees also had the power to allow the facilities to be used by other people. Although the trust was for a purpose, the use and enjoyment, it directly or indirectly benefitted individuals so was valid. Such a trust would not fail for want of a beneficiary. Per Goff J at 383: "I think there may be a purpose or object trust, the carrying out of which would benefit an individual or individuals, where the benefit is so indirect or intangible or which is otherwise so framed as not to give those persons any locus standi to apply to the court to enforce the trust, in which case the beneficiary principle would, as it seems to me, apply to invalidate the trust, quite apart from any question of uncertainty or perpetuity. Such cases can be considered if and when they arise. The present is not, in my judgement, of that character, and it will be seen that ... the trust deed expressly states that, subject to any rules and regulations made by the trustees, the employees of the company shall be entitled to the use and enjoyment of the land. Apart from this possible exception, in my judgement the beneficiary principle ... is confined to purpose or object trusts which are abstract or impersonal. The objection is not that the trust is for a purpose or object per se, but that there is no beneficiary ... Where, then, the trust, although expressed as a purpose, is directly or indirectly for the benefit of an individual or individual, it seems to me that it is in general outside the mischief of the beneficiary principle."

Re Endacott

Saying of masses in private cannot be charitable, but will be valid as a non-charitable purpose trust if the perpetuity rule is not infringed.

Re Endacott

T left approximately £2,000 to the North Tawton Devon Parish Council for the purpose of providing some "useful memorial to myself." Both Lord Evershed MR and Harman LJ stressed that the scope of the anomalous exceptions cases ought not to be extended. According to Lord Evershed, at 246, to do so 'would be to validate almost limitless heads of non-charitable trusts ..... so long only as the question of perpetuities did not arise; and, in my judgment, that result would be out of harmony with the principles of our law.' Harman LJ explained, at 250-1, that the anomalous exceptions cases were:'not really to be satisfactorily classified, but are perhaps merely occasions when Homer has nodded, at any rate these cases stand by themselves and ought not to be increased in number, nor indeed followed, except where the one is exactly like another. Whether it would be better that some authority now should say those cases were wrong, this is perhaps not the moment to consider

Trimmer v Danby

The testator bequeathed £1,000 for the erection of a monument to his memory in St Paul's Cathedral. This was upheld as valid.

Mussett v Bingle

The testator bequeathed £300 to erect a monument to his first wife's husband and £200 to provide for its upkeep. Held: the £300 to erect a monument to his first wife's husband was upheld as a valid trust. However, the £200 for the upkeep of the monument could not be upheld as a valid trust because it violated the perpetuity period.

Re Kelly

The testator left £100 sterling 'to his executors and trustees for the purpose of expending £4 sterling on the support of each of my dogs per year' Held: there was a valid trust for 21 years succeeding the death of the testator, provided any of the dogs lived so long (not a trust for the life of the dogs). Meredith J dismissed the idea that the 'measuring life' could be that of an animal (which was a possible basis for the outcome in Re Dean): 'If the lives of the dogs or other animals could be taken into account in reckoning the maximum period of "lives in being and twenty-one years afterwards" any contingent or executor interest might be properly limited, so as only to vest within the lives of specified carp, or tortoises, or other animals that might live for over a hundred years, and for twenty-one years afterwards, which, of course, is absurd. "Lives" means human lives. It was suggested that the last of the dogs could in fact not outlive the testator by more than twenty-one years. I know nothing of that. The Court does not enter into the question of a dog's expectation of life. In point of fact neighbours' dogs and cats are unpleasantly long-lived; but I have no knowledge of their precise expectation of life ...... there can be no doubt that "lives" means lives of human beings, not of animals or trees in California.' Despite Meredith J's reluctance to entertain the question of animals' life expectancy, there have been cases where courts have taken judicial notice of an animal's life expectancy.

Re Hooper

The testator left £1000 to his executors to use 'so far as they legally can do so' for the upkeep of certain graves, a vault, certain monuments, in particular cemeteries and churchyards. Held: the trust was valid for a period of 21 years from the date of the testator's death.

Re Hetherington

The testatrix, who was a devout Roman Catholic, left money for the saying of masses for the repose of the souls of herself and certain family members. Held: This would amount to a valid trust for a charitable purpose provided the masses were celebrated in public.

Re Astor's Settlement Trusts

This case is a good example of the beneficiary principle in practice: Viscount Astor created a trust, the terms of which were that the income was to be applied for the 'maintenance ... of good understanding ... between nations,' 'the preservation of the independence and integrity of newspapers,' 'the control publication ... financing or management of any newspapers,' and 'the protection of newspapers ... from being absorbed or controlled... [in ways] inconsistent with the highest integrity or independence.' It was accepted that these purposes were non-charitable. Roxburgh J held: the trust was invalid on two different grounds. Firstly, it violated the beneficiary principle. Secondly, the trust would, in any event, have failed on the grounds of uncertainty (at 547): 'If (contrary to my view) an enumeration of purposes outside the realm of charities can take the place of an enumeration of beneficiaries, the purposes must, in my judgment, be stated in phrases which embody definite concepts and the means by which the trustees are to try to attain them must also be prescribed with a sufficient degree of certainty.' He then concluded (at 549) by saying that both of these grounds had 'their origin in a single principle, namely, that a court of equity does not recognize as valid a trust which it cannot both enforce and control. This seems to me to be good equity and good sense.'