Consider whether each of the following bequests in the will of Caesar, who has just died, may take effect as a trust for charitable purposes, or, if not, as a non-charitable purpose trust.

The first of Caesar’s bequests to consider is the £10,000 for the upkeep of his pets.

As a general rule, trusts purely for private purposes are void but they can be upheld in some exceptional cases.  One such example of this is where the purpose is to provide for the maintenance of a particular animal or group of animals.  In Re Astor’s Settlement Trusts, it was made clear that trusts for non-charitable purposes will fail unless they are kept strictly within the narrow confines of the exceptional cases.  In Pettinhall v Pettingall, an annuity of £50 to be applied in maintaining the testator’s favourite black mare was held valid.

The gift made by Caesar cannot be charitable as it is for the benefit of specific animals and, thus, confers no public benefit.  Instead, it is a private purpose trust of imperfect obligation as in the leading case of Re Dean. In this case, the court upheld a gift of £750 for the period of 50 years

for the maintenance of the testator’s horses and hounds.  North J argued that the trust does not need to be capable of being enforced by someone and no objection was made to this “provided, of course, that it is not to last for too long a period.”  This case is authority for the proposition that trusts for the upkeep of specific animals are valid for the perpetuity period.  

A purpose trust can only be created from the gift for the benefit of particular animals if it is limited in perpetuity and someone interested in the money is willing to carry out the trust. According to the case of Pirbright v Salwey, the gift is good for 21 years.  However, the courts are free to take judicial notice of the longevity of the animals in an attempt to save the gift.  The present gift appears to be limited in perpetuity as required under s15(4) of the Perpetuities and Accumulations Act 1964 since Caesar provided in his will for the upkeep of his pets ‘until the last of them dies’.  However, this may depend on the specific animals involved in this case.

Consequently, it seems likely that this trust will be upheld as charitable.  Provision has been made for two named trustees, Brutus and Julia, to carry out this trust and Caesar appears to have limited its perpetuity.

The next of Caesar’s bequests to consider is the £100,000 for a new library to be built in his locality.  Prima facie, the gift creates a charitable trust within the ambit of the ‘advancement of education’ classification of charitable trusts given in Pemsel’s case.  The preamble to the 1601 statute refers to ‘the maintenance of schools of learning, free schools and scholars in universities  . . . education and preferment of orphans’.  Education is not confined to matters formally taught in schools and universities and the advancement of education category now constitutes a very wide category of charitable purposes.  Lord Hailsham emphasized the dynamic nature of the concept in IRC v McMullen:

     “What has to be remembered . . . is that both the legal conception of charity, and within it the educated

       man’s ideas about education are not static, but moving and changing.  Both change with changes in

       ideas about social values.  Both have evolved with the years.  In particular in applying the law to

       contemporary circumstances it is extremely dangerous to forget that thoughts concerning the scope and

       width of education differed in the past greatly from those which are now generally accepted.”

In Incorporated Council of Law Reporting for England and Wales v AG, the publication of law reports was regarded as a charitable activity.  Buckley J held that ‘[f]or the present purpose the second head should be regarded as extending to the improvement of a useful branch of human knowledge and its public dissemination.’  It could be argued that a library provides a forum for this type of activity and therefore falls within this category.  Notably, in British Museum Trustees v White, the establishment and maintenance of a museum fell within the category of the advancement of education.  Attempts could be made to draw a parallel between the two establishments of a museum and a library in this case.

In order for a trust for the advancement of education to be valid it must benefit the community or an appreciable section of it.  In addition, it must not be restricted to persons linked together by a physical nexus.  In Oppenheim v Tobacco Securities Trust Co Ltd, Lord Simonds indicated what features he considered were necessary for an educational trust to be for the 'public benefit':

     “(1) that the possible beneficiaries must not be numerically negligible, and (2) that the quality which

       distinguishes them from other members of the community, so that they form by themselves a section of

       it, must be a quality which does not depend on their relationship to a particular individual.”

Therefore, the issue in this case is whether there is a restriction in the benefit of the library to the residents of the locality and thus depriving the gift of charitable status.  However, the gift will probably remain charitable because the possible beneficiaries do not appear to be numerically negligible and there is no apparent physical nexus between Caesar and the residents of his locality.  Perpetuity is not in issue here as charitable trusts are the only type of trust which may endure in perpetuity.  Thus, it is submitted that this trust is a valid charitable trust for the advancement of education.

The penultimate bequest to review is the £50,000 for any of Caesar’s friends or relatives in financially difficult circumstances.  Prima facie, the trust falls under the head of ‘relief of poverty’ laid down by Lord Macnaghten in the Pemsel case.  The Preamble to the 1601 statute speaks of: “aged, impotent and poor” people.  According to Joseph Rowntree Memorial Trust Housing Association Ltd v Attorney General, the phrase should be construed disjunctively so

that a beneficiary need only fit one of these descriptions.  The meaning of poverty is a matter of degree.  There is no definition of poverty but it was submitted in Re Coulthurst that ‘it is quite clearly established that poverty does not mean destitution; . . . it may not unfairly be paraphrased as meaning persons who have to ‘go short’ in the ordinary acceptance of that term . . .”

In Re Scarisbrick a trust was upheld “for such relations of my . . . son and daughters as in the opinion of the survivor of my . . . son and daughters shall be in needy circumstances . . . as the survivor . . . shall by deed or will appoint.”  This was a trust for “poor relations,” and according to Dingle v Turner there is no requirement for public benefit in poverty cases.  However, there will not be a charitable trust where the persons to be benefited are specified individuals.  Scarisbrick confirmed that the gift was charitable provided that it was for ‘the relief of poverty amongst a particular description of poor people.’  This may be relied upon to argue that Caesar is relieving poverty among a particular class of people, namely, his friends and relatives.

In Re Cohen, the testatrix gave part of her residuary estate to trustees upon trust to apply the same in their absolute discretion ‘for or towards the maintenance and benefit of any relatives of mine whom my trustees shall consider to be in special need.’  Templeman J held that a valid charitable trust for the relief of poverty among a class had been created as it was indistinguishable from Re Scarisbrick.  In the case of Re Segelman, the court upheld a trust for the ‘poor and needy’ of a class comprising of 26 of the testator’s relatives.  It must be noted that the majority of the case law concerns poor ‘relations’ and therefore, the ‘friends’ of Caesar may experience difficulties in relation to this trust.

Caesar has specified in this bequest that this money should be extended to any of his needy friends or relatives in any EU member state.  This may pose a problem for the courts as they may question whether tax privileges should be given by the British Revenue for the benefit of communities abroad.  However, the Charity Commissioners have stated that the relief of

poverty is presumed beneficial wherever it occurs but this may be challenged if it would be considered contrary to public policy to carry out the trust in this country.  In Re Niyazi’s Will

Trusts, a trust for the construction of a working men’s hostel in Cyprus was held charitable by Megarry V-C “although it was desperately near the border-line.”  Therefore, it seems likely that the European element of Caesar’s bequest will not prove to be problematic.

Nowadays, it is difficult to imagine a trust for a class of poor relations that will not be charitable.  This, together with the fact that the requirements under this head appear to have been complied with, suggests that the trust will receive charitable status.  

The final bequest is the sum of £15,000 to Caesar’s local sports club.  This appears to fall within the residual head of charity of trusts headed ‘other purposes beneficial to the community.’  It has been submitted that deciding ‘whether trusts for the furtherance of sport and the playing of games are charitable is complicated.’ However, gifts for the establishment of recreation grounds for the public generally or for the inhabitants of a particular area have been held charitable.  Furthermore, a trust ‘whose dominant purpose is to improve the health of the public by providing facilities where they can take healthy exercise may be charitable.’

In IRC v Baddeley, a recreational trust was rejected as exclusively charitable.  As a consequence, this cast doubt on the charitable status of various bodies and in order to clarify this, the Recreational Charities Act 1958 was passed.  Under this Act, the provision of facilities in the interests of social welfare will be charitable provided that the persons for whom they are primarily intended 'have need of such facilities ... by reason of their youth, age, infirmity, or disablement, poverty or social and economic circumstances' or 'the facilities are to be available to the members or the female members of the public at large'.  In addition, by section 1(2)(a) the facilities should be provided ‘with the object of improving the conditions of life for the persons for whom the facilities are primarily intended.’

Guild v IRC was the first House of Lords decision on the Act.  In this case, it was decided that in the case of a sports centre or other purpose in connection with sport, there was no need to be

providing for a deprived group.  Section 1(2) was satisfied where the object of the gift was to improve the conditions of life of the community generally.  

The predominantly foreseeable difficulty with this bequest is that the wording implies a physical nexus.  Caesar is leaving money to the trustees with which he has ‘been associated for many years’.  It must be questioned whether the personal nature of the connection prevents it from being available to a section of the public.  There is ample authority that a trust under the fourth head cannot be charitable if, following Compton and Oppenheim, the eligible beneficiaries are confined to persons defined by reference to a personal nexus with a named propositus.  

This trust will probably receive charitable status since the trust’s main purpose seems to be promoting ‘the physical fitness of club members’ and assuming that anybody can become a member of the club, this should be sufficient to fulfill the public benefit requirement.

To summarise, it would seem that three out of the four bequests will be upheld for charitable purposes and one for non-charitable purposes.  The first bequest involves a private purpose trust of imperfect obligation and will probably be allowed by the court because it falls within one of the limited exceptions of non-charitable purpose trusts.  The second bequest appears to be a charitable trust for the ‘advancement of education’ and the next a charitable trust for the ‘relief of poverty.’  The final bequest should assume charitable status under Lord Macnaghten’s ‘other purposes’ category.  

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