2016/Q4

Eunice dies recently . According to her will, the residue of her estate is to be held on trust as follows :

(a) To establish and fund a research professorship in energy efficiency at Popping University

(b) To provide grants to people to help them improve the energy efficiency of their homes and businesses;

(c) To encourage governments everywhere to pursue policies that foster the use of environmentally friendly sources of energy .

Felix and Gwyneth have been appointed as the executors of Eunice ‘s estate and the trustees of her will trust . They seek your
advise concerning the validity of those trusts. After extensive searches , they have been unable to find any institution called
“Popping University” or with similar name .

Advise Felix and Gwyneth

Compiled by ; Anne Shyamala ( BAC- Senior lecturer)

Advise F & G - regarding the validity of these will trusts .

The q is whether these trust are charitable trust within the CA 2011

can be considered to be charitable only if these conditions are satisfied:

(1) it must be established for a purpose that the law regards as charitable; - with reference to Section 3

(2) its purposes must benefit the public or a sufficient section of the public; in reference to Sc 4

(3) it must be wholly and exclusively charitable in both its purpose and operation in reference to Sc 1 (1)(a)

Compiled by ; Anne Shyamala ( BAC- Senior lecturer)

 (a) To establish and fund a research professorship in energy efficiency at
Popping University
they have been unable to find any institution called “Popping University” or with
similar name .

Purpose that is charitable ? Public benefit : The fact the executors are not
- advancement of education Identifiable benefits able to find any institution called
-the advancement of environmental Popping University
protection or improvement;

1. for a purpose that the law regards as charitable?- Sc 2(1)(a) CA

Under Sc 3 - The Charities Act 2011 identifies thirteen descriptions of recognized charitable purposes. The purposes of a charity must satisfy at least one of
these descriptions, although they do overlap and so a charity may satisfy more than one of them.

Sc 3(1) A purpose falls within this subsection if it falls within any of the following descriptions of purposes

(i)the advancement of environmental protection or improvement;

(b)the advancement of education

?Is there an advancement of education

IRC v Mc Mullan – includes formal instruction in the classroom as well as instruction , training and practice

Incorporated Council of Law Reporting for England and Wales v A-G [1972] Ch 73, 102 (Buckley LJ).

a trust for the publication of law reports was considered to advance education because it assisted research into the law and disseminated knowledge of the law.
Education also encompasses research. In assessing whether the research is educational, the court will have regard to its aims and utility.

Re Hopkins’ Will Trust ( 1965) research should be considered to be educational only where it involves some element of dissemination of the results.

Compiled by ; Anne Shyamala ( BAC- Senior lecturer)

Re Hopkins as regards academic research, which will still be regarded as educational even though the researcher is not required to engage in teaching or
education in the conventional sense. Such research will be considered to be educational if it is of educational value to the researcher, or might lead to something
that would pass into the store of educational material, or might improve the sum of communicable knowledge, including the formation of literary taste and
appreciation. Conducting research into the authorship of the plays attributed to Shakespeare was considered to be educational in the third sense, since it related
to the formation of literary taste and appreciation. The first attribute of research, namely that it is of educational value to the researcher, is doubtful, especially
because this would not appear to meet the public benefit requirement. Consequently, the preferable view is that research should be considered to be educational
only where it involves some element of dissemination of the results

Facts of Re Hopkins : the key issue was whether a gift to the Francis Bacon Society, to identify evidence in support of his authorship of the plays attributed to
Shakespeare, was charitable. In holding that it was, the court observed that it was not required to determine whether Bacon did write the plays attributed to
Shakespeare, but only whether this was a legitimate subject of research.

McGovern v A-G (1982) Slade J summarised the principles:

A trust for research will ordinarily qualify as a charitable trust if, but only if, (a) the subject matter of the proposed research is a useful subject of study; and (b) it is
contemplated that knowledge acquired [thereby] will be disseminated to others; and (c) the trust is for the benefit of the public, or a sufficiently important section of
the public. (2) In the absence of a contrary context, however, the court will [readily construe] a trust for research as importing subsequent dissemination of the
results thereof. (3) Furthermore, if a trust for research is to constitute a valid trust for the advancement of education, it is not necessary either (a) that a
teacher/pupil relationship should be in contemplation or (b) that the persons to benefit from the knowledge to be acquired should be [students] in the conventional
sense. (4) … [the court] must pay due regard to any admissible extrinsic evidence which is available to explain the wording of the will in question or the
circumstances in which it was made.

Re British School of Egyptian Archaeology, (1954) in which a trust to excavate and discover Egyptian antiquities, to hold exhibitions, to publish works, and to
train students was held to be for educational purposes, both as regards the dissemination of knowledge and the teaching of students.

? Sc 4 : Public Benefit

The charity must provide a benefit that is capable of being recognized or described, but it need not be measured. The use of the word ‘benefit’ in the context of the
public benefit test has sometimes caused confusion to the courts, since ‘benefit’ is sometimes used to describe the charitable purpose.

A key distinction therefore needs to be drawn between two uses of the word ‘benefit’. A charitable purpose does need to be beneficial, and this is determined as a
matter of law with reference to the heads of recognized charitable purposes and the spirit of the Preamble. Benefit for purposes of the public benefit test needs to
be identified as a question of fact

Re Shaw, ( 1957) George Bernard Shaw’s request in his will that his estate should be used to create a forty-letter alphabet to replace the existing twenty-six-letter
one was not considered to be of any general utility to the public.

Compiled by ; Anne Shyamala ( BAC- Senior lecturer)

On the facts : what would be the benefits that can be deprived from the research ?

- The research would indicate why energy efficient is necessary

- How to implement policies on energy saving

As such this would be considered as charitable trust within the CA 2011

The issue : F and G is unable to find any institution called Popping University ?

Compiled by ; Anne Shyamala ( BAC- Senior lecturer)

 (b) To provide grants to people to help them improve the energy efficiency of
their homes and businesses
1. for a purpose that the law regards as charitable?- Sc 2(1)(a) CA

Under Sc 3 - The Charities Act 2011.

Sc 3(1) A purpose falls within this subsection if it falls within any of the following descriptions of purposes

(i)the advancement of environmental protection or improvement

Note : acting both for the protection and improvement of the environment

2. Public Benefit – Sc 4

- Reduce energy waste

- Save on the use of energy

- Would reduce cost

But the issue : in relation to business , this would means it would help businesses generate more profit as such not exclusively charitable

Compiled by ; Anne Shyamala ( BAC- Senior lecturer)

 (c) To encourage governments everywhere to pursue policies that foster the use of environmentally friendly sources
of energy .

Under Sc 3 - The Charities Act 2011.

Sc 3(1) A purpose falls within this subsection if it falls within any of the following descriptions of purposes

(i)the advancement of environmental protection or improvement

Note : acting both for the protection and improvement of the environment

3. Public Benefit – Sc 4

? political purpose / objective

“encourage governments everywhere to pursue policies”

Bowman v Secular Society Ltd [1917]- Charities cannot pursue political objectives

A number of reasons can be identified as to why the courts are not willing to consider whether purposes seeking a change in law or policy are for the benefit of the
public:
1. The court usually has no means of judging whether the proposed change will be for the public benefit. Bowman v Secular Society Ltd [1917]
2. Even if there were evidence of the public being benefited by the change in law or policy, the court should abide by the principle that the law is right as it
stands, for otherwise it would trespass on the functions of the legislature- McGovern v Attorney General [1982]
3. The Attorney General has a duty to formulate a scheme for the execution of a charitable trust if required, and it would not be appropriate for such a law
officer to intervene and seek a change in the law. National Anti-Vivisection Society v IRC [1948]

McGovern v Attorney General [1982] concerned a trust set up by Amnesty International for those of its purposes that it felt were charitable. The relevant
purposes were to secure the release of prisoners of conscience, to procure the abolition of torture and other cruel, inhumane, or degrading treatment of prisoners,
to undertake research into the maintenance and observation of human rights and to disseminate the same

Compiled by ; Anne Shyamala ( BAC- Senior lecturer)

 National Anti-Vivisection Society v IRC,- reason why the society was not considered to be charitable was that its main purpose was to campaign for a change
in the law to abolish vivisection, which was held to be a political purpose.

Furthermore, Lord Simonds pointed out that the Attorney-General must supervise and enforce charities, and, in some cases, formulate a scheme for their
execution, and he should not be put in the position of forwarding a purpose that he and his government might feel to be quite against the interests of the general
welfare.

A charity will legitimately be using political means to further a non-political purpose where it is campaigning for a change in the law for the benefit of those who are
objects of the charity’s purpose, raising awareness of a particular issue, influencing and changing public attitudes, or influencing government policy or legislation.

In Australia (and the US), the position on the promotion of political purposes by charities is more relaxed than in the UK. See, for example, the decision of the High
Court of Australia to uphold the political activities of a charity that acts as a ‘watchdog’ to scrutinise the efficacy of aid provision in foreign countries (Aid/Watch
Incorporated v Commissioner of Taxation [2010] HCA 42).

What about governments everywhere ? in Mc Govern v AG :the court would have to take into account the substantial risk that such activity by a UK charity would
prejudice the foreign relations of the UK with that country. Precisely the same dangers would apply to changing the administrative practice of a foreign government
if the purpose could be achieved by that end. Therefore trusts whose central purposes involved a change in the law, government policy, or administrative practice
either in the UK or abroad were political and thus not charitable

Compiled by ; Anne Shyamala ( BAC- Senior lecturer)

Compiled by ; Anne Shyamala ( BAC- Senior lecturer)
Compiled by ; Anne Shyamala ( BAC- Senior lecturer)
Compiled by ; Anne Shyamala ( BAC- Senior lecturer)