The Reform of Charitable Constitutional Purposes: Should Australia Follow England's Path in Aligning Charitable Trusts and Corporations?

This chapter discusses ‘cy-près’, which is an application to alternative charitable purposes should a charity cease to operate but still possess assets. One possibility is that the assets should be returned to those who donated them on the basis of a resulting trust, in much the same way as a surplus on the failure of a private trust will return to the original contributors. However, charitable trusts are treated differently from private trusts because they have a public character. The law regards property given for any specific charitable purpose as given not merely to that particular purpose but dedicated to charity in the general sense. It follows that if the particular purpose for which the property was given fails, it will be applied, under a scheme drawn up by the Charity Commission, to other similar charitable purposes and will not return to the donor under a resulting trust.

This chapter discusses ‘cy-près’, which is an application to alternative charitable purposes should a charity cease to operate but still possess assets. One possibility is that the assets should be returned to those who donated them on the basis of a resulting trust, in much the same way as a surplus on the failure of a private trust will return to the original contributors. However, charitable trusts are treated differently from private trusts because they have a public character. The law regards property given for any specific charitable purpose as given not merely to that particular purpose but dedicated to charity in the general sense. It follows that if the particular purpose for which the property was given fails, it will be applied, under a scheme drawn up by the Charity Commission, to other similar charitable purposes and will not return to the donor under a resulting trust.

Waqf is a form of voluntary charity and its purposes are recognised by Islamic law as religious, pious or charitable. Charitable trust is a public trust where the settlor may aim to create certain purposes. Both waqf and charitable trust share the same objective, which is for the benefit of the community at large. The objective of this article is to reveal how the requirements of “public benefit” in charitable trust are applicable to waqf cases. In determining the validity of a charitable trust, the requirement of public benefit is essential, particularly under the last three charitable purposes, namely advancement of education, advancement of religion, and other purposes beneficial to the community. Besides, the personal nexus test is applied in the case of charitable trust to ensure no personal linkage between the founder and the beneficiaries. These two elements are necessary to establish a valid charitable trust. The English court will first filter out such a case to ensure that there is no infringement of other people’s rights and exploitation of the charitable trust’s privilege. Public benefit requirement and personal test are also applicable in cases relating to waqf cases. In waqf, the Islamic law prescribes two categories, which are “Waqf Khairi” (Public waqf) and “Waqf Ahli” (Family waqf). However, family waqf is treated as “non-charitable under the influence of English law of trust” because it infringes the rule against perpetuities. The methodology used in this article is doctrinal legal research focusing on the legal principle as well as the cases of public benefit requirement, the personal nexus test, and the rule against perpetuities in charitable trust and waqf. This article found that the requirement of public benefit is applicable in public waqf, but not for family waqf. Despite that, family waqf should be maintained as it is a great channel for wealth distribution and succession planning.

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses charitable trusts. Charitable trusts differ from private trusts in a number of ways. A charitable trust must be: for a recognized charitable purpose; for the ‘public benefit’; and for exclusively charitable purposes. The public benefit requirement raises different issues under each head of charity. Legislation related to charities and their regulation has recently been consolidated by the Charities Act 2011. Cy-près is a power which allows failing charitable trusts to be applied to other related charities.

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses charitable trusts. Charitable trusts differ from private trusts in a number of ways. A charitable trust must be: for a recognized charitable purpose; for the ‘public benefit’; and for exclusively charitable purposes. The public benefit requirement raises different issues under each head of charity. Legislation related to charities and their regulation has recently been consolidated by the Charities Act 2011. Cy-près is a power which allows failing charitable trusts to be applied to other related charities.

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses charitable trusts. Charitable trusts differ from private trusts in a number of ways. A charitable trust: must be for a recognized charitable purpose; for the ‘public benefit’; and for exclusively charitable purposes. The public benefit requirement raises different issues under each head of charity. Legislation related to charities and their regulation has recently been consolidated by the Charities Act 2011. Cy-près is a power which allows failing charitable trusts to be applied to other related charities.

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. Charitable trusts are not subject to the objections against private purpose trusts and enjoy certain privileges. Charities are not public institutions, but are nevertheless subject to judicial control, to the constitutional protection of the Crown as parens patriae (acting through the Attorney-General) and to the supervision of the Charity Commission. Moreover, they are not subject to the beneficiary principle and to the rule against inalienability of capital. This chapter deals with charitable trusts and discusses the distinction between legal and ‘everyday’ notions of charity. It also examines a charitable purpose, the advantages and disadvantages of charitable status, limits on the recognition of charitable trusts, what happens when a charitable purpose fails, whether the purpose of a charitable status is sufficiently beneficial to the public and the administration of charitable trusts. The chapter furthermore considers trust law and tax law privileges; the roles of charities, such as the prevention or relief of poverty and the advancement of education and religion; the public benefit requirement in educational trusts; recreational charities; the exclusivity requirement; the doctrine of cy près; and the disposal of surplus donations.

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. Charitable trusts are not subject to the objections against private purpose trusts and enjoy certain privileges. Charities are not public institutions, but are nevertheless subject to judicial control, to the constitutional protection of the Crown as parens patriae (acting through the Attorney-General) and to the supervision of the Charity Commission. Moreover, they are not subject to the beneficiary principle and to the rule against inalienability of capital. This chapter deals with charitable trusts and discusses the distinction between legal and ‘everyday’ notions of charity. It also examines a charitable purpose, the advantages and disadvantages of charitable status, limits on the recognition of charitable trusts, what happens when a charitable purpose fails, whether the purpose of a charitable status is sufficiently beneficial to the public and the administration of charitable trusts. The chapter furthermore considers trust law and tax law privileges; the roles of charities, such as the prevention or relief of poverty and the advancement of education and religion; the public benefit requirement in educational trusts; recreational charities; the exclusivity requirement; the doctrine of cy près; and the disposal of surplus donations.

This chapter examines charitable trusts in England. It discusses the advantages and disadvantages of being a charitable trust and explains the conditions that must be met in order for a trust to be considered charitable. The chapter considers the different meaning of a charitable purpose as it has been defined in cases and by statute, such as for the advancement of education or religion and the relief of poverty. It examines the meaning of the public benefit requirement and also considers the requirements that purposes must be exclusively charitable. This chapter also considers the cy-près doctrine which applies where a charitable purpose has failed initially or subsequently.

This chapter examines charitable trusts in England. It discusses the advantages and disadvantages of being a charitable trust and explains the conditions that must be met in order for a trust to be considered charitable. The chapter considers the different meaning of a charitable purpose as it has been defined in cases and by statute, such as for the advancement of education or religion and the relief of poverty. It examines the meaning of the public benefit requirement and also considers the requirements that purposes must be exclusively charitable. This chapter also considers the cy-près doctrine which applies where a charitable purpose has failed initially or subsequently.

This chapter examines charitable trusts in England. It discusses the advantages and disadvantages of recognizing a charitable trust and explains the conditions that must be met in order for a trust to be considered charitable. The chapter considers the different meaning of a charitable purpose as it has been defined in cases and by statute, such as for the advancement of education or religion and the relief of poverty. It examines the meaning of the public benefit requirement and also considers the requirements that purposes must be exclusively charitable. This chapter also considers the cy-près doctrine which applies where a charitable purpose has failed initially or subsequently.

This chapter discusses the legal powers and duties of trustees and governing bodies of voluntary hospitals, health authorities and NHS trusts constituted under the National Health Service Act 1977, as amended by the National Health Service and Community Care Act 1990, administering property for charitable purposes. The same rules apply generally to all charity trustees, including for example, leagues of hospitals friends established for helping local hospitals and also the National League of Hospital Friends to which most local leagues are affiliated, though they are quite independent of it. Another example is that of the students’ union at a medical school. In London Hospital Medical College v IRC (1976)1 it was held that the union was charitable because its purpose was to advance the purposes of the medical school which was itself charitable. This decision was applied in Attorney-General v Ross (1985)2 in which a students’ union was held to have been formed for educational and charitable purposes and that its non-charitable political purposes were merely ancillary to its charitable purpose.

In a recent judgment regarding the Jersey moveable estate of a Greek national (In the Matter of the Estate of the Late Constantin Mattas [2024]JRC068), the Royal Court decided several issues of trusts and probate law, some novel, and some which go to the very heart of the question of what constitutes a valid Jersey trust. Most notably, the Court held that, in the present case involving a trust for both charitable and non-charitable purposes, the failure of the non-charitable purpose resulted in the whole of the assets of the Trust being held for the benefit of the charitable purpose, rather than the failure of the trust as a whole.

This article examines Thailand’s historic charitable trusts for the purpose of establishing and maintaining cemeteries and places of worship. Whilst existing literature explores the reception of English trusts law in British colonial territories in Southeast Asia over the course of nineteenth century, little is discussed in relation to Thailand, historically known as Siam, during the same period. Based on the author’s archival research, this article explores the route and development of these trusts and argues that, due to the Thai Supreme Court’s recognition of their charitable purpose, these trusts are not subject to a rule against perpetuities. Therefore, they will continue to present an anomalous exception to Thailand’s civil law legal framework and offer a fascinating example of the deep, tenacious roots put down by a rejected legal concept from Thailand’s brush with nineteenth century colonial powers.

The institution of vakf or wakf (pious foundations) has always played a very important role in Islamic law. The vakf designs an inalienable religious endowment or a donated property (a plot of land, a building or even cash) for Muslim religious or charitable purposes. The donated assets are held by a charitable trust. Its legal consequences run across public and private law. Surprisingly, vakf was accepted as a practice by the Orthodox Church. It was applied by the Ottoman religious courts to Christian religious foundations i.e. monasteries and monastic properties through the centuries. Two Ottoman judicial acts (vakifname) establishing “Christian vakfs”, from 1569 and 1846 that are kept in the archives of the Mount Athos monastery of Simonopetra, reveal the complexity of the issues raised by this legal transplant.