Private Purpose Trusts and Unincorporated Associations (Unincorporated…
Private Purpose Trusts and Unincorporated Associations
Morice v Bishop of Durham per Sir William Grant MR
"There must be somebody in whose favour the court can decree performance."
Re Endacott - beneficiary principle
Testator gave North Tawton Parish Council money on trust for purpose of "providing some useful memorial to myself"
Lord Evershed - memorial not within category of anomalous cases because "would go far beyond any fair analogy to any of those decisions"
Construction/maintenance of monuments and graves
Mussett v Bingle - "funerary nature"
Private masses - Bourne v Keane
"Holy, believing, persevering prayer whereby someone pleads with God on behalf of another or others who desperately need God's intervention"
Public - Re Hetherington
Maintenance of specific animals
Pettingall v Pettingall - "my favourite black mare"
Re Dean - "maintenance of my horses and hounds"
NOTE Re Kelly
Miscellaneous cases - Re Thompson - "towards the promotion and furthering of fox hunting" - Hunting Act 2004
Re Recher's WT
Definition from Conservative and Unionists Central Office v Burrell
If doesn't fall within Re Endacott exceptions - Re Denley
"To be maintained and used... for the purpose of a recreation or sports ground primarily for the benefit of employees"
Per Goff J - "the beneficiary principle of Re Endacott is confined to purpose or object trusts which are abstract or impersonal. The objection is not that the trust is for a person or object per se, but that there is no beneficiary"
"Where, then, the trust, though expressed as purpose, is directly or indirectly for the benefit of an individual or individuals, it seems to be that it is in general outside the mischief of the beneficiary principle"
Have to distinguish between two types of case
Where benefit so indirect/intangible that would not give those who stand to benefit the right to apply to have terms enforced
If did allow those who were going to benefit right to apply to court to enforce trust
But what powers are sufficient?
1 more item...
Definition in Conservative and Unionist Central Office v Burrell, per Lawton LJ (CA)
2+ people bound together for a common purpose that is not a business purpose
These people have mutual rights/duties arising from a contract between them
In organisation that has rules identifying who controls/has funds, and the terms on which this control can be exercised
Can be joined/left at will
Not a legal entity "aggregate of its own members"
Can't sue/be sued in own name
No personality distinct from its members
Continues until dissolution or moribund
Problems of property
Usually vested in names of specified members
Hanchett-Stamford v AG - "sub-species of joint tenancy"
Can't sever their interests
Bare trust for the current members
Immediate gift to present members
Cocks v Manners
Leahy v AGNSW
BUT only used if reflects testator's intention - need to consider...
How legacy is worded
Type of property involved
How recipients of property can be classified
Gift to present and future members
BUT only used if drafted to show specifically intended - either property used as endowment or specific words used
Need to comply with perpetuity rules
If executed after 06/04/2010 then PAA 2009 is applicable - 125 year period presumed if not stated on trust
If executed before this, use PAA 1964
Contract holding theory
Re Horley Town FC
Hanchett-Stamford v AG
Brightman J - referred to passage in Leahy v AG "which suggests that there is no halfway house between a gift to the members of a UA beneficially, as joint tenants, or as tenants in common, and a trust for the purposes of the society"
Named alternative position - gift to the members in terms of the contract between them and an accretion to the fund - referred to Cross J in Neville Estates Ltd v Madden
How is gift described? Must be for members' benefit not a purpose
BUT c.f. Re Lipinski
Members must have internal control of property (Re Grant's)
BUT c.f. Horley Town FC
Beneficiaries must be ascertainable
Beneficiaries must have a locus standi to sue
BUT also need valid perpetuity period to be specified
BUT note interpretation of this in Re Lipinski
NOTE also Denley had a gift over - Re Horley Town held that this "makes it an unsafe basis for a decision" if gift over does not exist
Limited obiter mention in Grender v Dresden - trust for a definable class of persons of the type recognised in Re Denley
Private purpose trusts
Must comply with the three certainties (Re Endacott - "some useful memorial to myself")
Categories now closed
Remoteness of vesting
Excessive duration (inalienability)
Specified period up to 21 years
Human lives in being + 21 years - "royal lives" clause
"So far as the law allows" - Re Hooper
c.f. s18 Perpetuities and Accumulations Act 2009
50 year period permitted - Re Dean
Human lives, not animal lives (Re Kelly)
Most animals don't live longer than 21 years (Re Haines)
Mussett v Bingle - £300 to build and £200 to maintian
Dissolution of a UA
Resulting Trust approach - use for Re Denley
Re Hoburn Aero Components Air Raid Distress Fund - members get contributions back
Re West Sussex - identifiable assets go on to resulting trust
If unidentifiable assets - bona vacantia
Re Bucks Constabulary Widows Friendly Society (HC)
1) See if any rules stating what happens to property when UA dissolved
2) If nothing, then members should try to agree how to distribute assets
3) If can't agree then go to court - usually orders equal distribution (Re GKN Nuts and Bolts Ltd Sports and Social Club)
If something suggesting equal distribution should not be made, then courts will go with that (Re Sick and Funeral Society of St John's Sunday School, Golcar)
Hanchett-Stamford v AG (HC) - per Lewison J
Re Bucks wrong to say that last surviving member cannot take assets and they go bona vacantia
While true that UA doesn't exist when only one member left, surviving member should be able to claim assets - only bona vacantia where last remaining member dies and never made claim