1. NON CHARITABLE PURPOSE
TRUST
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

2. Introduction
• Private Trust : trust in favour of ascertainable
individuals
• Charitable trust : A trust for purposes which
are treated in law as charitable.
• Non charitable purpose trust : where no
individual directly benefits.
• Usually is struck down and it is not
enforceable by anyone.
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

3. • Question : Is it possible to establish a trust for
non charitable purposes
• There is no question whether this type of trust
can be exempted from income tax
• The question is whether this type of trust can
be considered as valid.
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

4. Objections to Non-Charitable Purpose
Trust
• A) Enforceability
• B) Uncertainty
• C) Excessive Delegation of Testamentary
Power
• D) Perpetuity
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

5. A) Enforceability
• A trust is an obligation
• The object is that there cannot be an obligation upon
the trustee unless there is a correlative right in
someone else to enforce it.
• Charitable trust : AG is in charged with the duty of
enforcement
• Private trust will be void if there is no beneficiary
• Due to this principle NCPT is rendered totally void.
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

6. MORICE V BISHOP OF DURHAM
(1804) VES Jr 399
• Sir William Grant : Every trust must have a
definite object. There must be somebody in
whose favour the court can decree
performance . . . The trust is void unless there
human beneficiaries capable of enforcing the
trust.
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

7. B) Uncertainty
• NCPT will be invalid if purposes are very wide.
• Morice v Bishop of Durham : Benovelence
and liberality are wider concepts than
‘charity’ Purposes were uncertain and hence
the trust was void.
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

8. RE ASTOR’S SETTLEMENT TRUSTS
(1952) Ch 534
• An intervivos settlement was made in 1945 :
all shares in the Observers Ltd were held for
various non charitable purposes :
• 1) good maintenance of good understanding
sympathy and coorperation between nation
• 2) The preservation of the independence and
integrity of newspaper
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

9. • 3)The control publication financing or
management of any newspaper periodicals
books pamphlets
• The protection of newspaper from being
absorbed by or being tied by finance or
otherwise to special views inconsistent with
the highest integrity and independence
• Held : Invalid : Uncertainty
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

10. C) Excessive Delegation of Testamentary
Power
• In order to effect a NCPT powers might be
given to willing trustee to perform.
• Judicial statements in some cases had led the
effect that purpose trust created by will are
void because trustees are left to determine
the application of the property in a will.
• Reason :there is nobody to enforce the trust..
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

11. D) Perpetuity
• Charitable trust may last forever.
• NCPT is void if it is to continue beyond the
perpetuity period.
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

12. Exceptional Cases Upholding a Valid
Non Charitable Purpose Trust
• For a non Charitable purpose trust to be valid,
it need to cover a narrow field.
• The purposes will need to be kept strictly
within narrow confines of limited and
exceptional cases.
• Gift must be limited to particular purposes.
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

13. a) Specific Animal(s)
• Gifts for the care for specific animals, though
not charitable have been upheld as a valid
trust.
• Petingall v Petingall (1842) 11 L.J Ch 176
• An annuity of £50 to be applied in maintaining
the testator’s favourite blackmare.
• Valid NCPT
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

14. • Re Dean (1889) 41 Ch. D 552
• A testator charged his freehold estates with
the payment of £750 per annum to his
trustee for the period of 50 years if any of his
horses and hounds should so long live and
declared that the trustees should apply the
money in the maintenance of his houses and
hound.
• A Valid non charitable trust although there
was no one who could enforce it.
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

15. b) Tombs and Monuments
• A trust for building and the maintaining a
particular grave or monument has been held
as valid non charitable purpose trust,
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

16. Cases
• Re Hooper (1932) 1 Ch 38
• A testator gave a sum of money for the case
and upkeep of certain family graves and a
table and window a church for ‘ so long as the
trustees legally can do.’
• Held : The trust not being charitable was valid
for 21 years
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

17. • Mussett v Bingle (1959) AC 457
• A gift for the erection for the erection of a
monument to the testator’s widow’s first
husband.
• Held : A valid non charitable purpose trust.
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

18. • Re Hooper [1932] 1 Ch 38
• A gift to trustees for the upkeep of graves and
monument for the period of 21 years.
• Valid
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

19. • Trimmer v Danby (1856)
• The testator gave £1000 to his executors “ and
I do direct them to lay out and expand the
same to erect a monument to my memory in
St Paul’s Cathedral.
• Held : The bequest was upheld.
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

20. c) Masses for private individuals.
• A trust for masses in England and Wales is
valid but not in Malaysia.
• Bourne v Keane (1919) AC 815
• Trust created for the salvation of the
Christian.
• Held : Valid
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

21. Position in Malaysia.
• 1) Cheo Choon No v Spottiswoods 1 KYSHE
216
• A trust for a ceremony called Siew Chiew.
• Held : Void.
• 2) Re Khoo Cheng Too (1932) 2 MLJ 119
• A devise of property maintaining Siew Chiew
ceremony was held as void
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

22. • 3) Re Yap Kwan Seng (1924) 4 FMSLR 313
• The testator gave land and house to b held in
trust forever for a family house for ancestral
worship and family burial ground
• Held : Void.
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

23. d) Fox Hunting
• Re Thompson (1934) Ch 342
• The testator gave a legacy of £1000 to a friend
to b applied by him towards the promotion
and furthering of fox hunting
• Held : Valid
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

24. e) Unincorporated Association.
• An unincorporated association exists where
two or more persons are bound together for
one or more common purposes by mutual
undertaking, each having mutual duties and
obligations.
• An unincorporated associations is not a legal
person and it cannot be an owner of property
or subject to legal right and duties.
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

25. • Question: What is the effect of gifts to such
associations.
• A) If it is for charitable then assets will be held
by officers or a group of trustee.
• B) Non Charitable Purposes : Gifts need to be
made in favour of the members
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

26. Cases
• 1) Leahy v A.G. For New South Wales
(1959) AC 457.
• The testator provided that Elmslea, a sheep
station of some 730 acres to be held upon
trust for nuns of Catholic Church or the
Christian Brothers as my executors and
trustee shall select
• Held : Not Valid as neither a Charitable
trust or Private Trust. NCPT.
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)

27. • Re Lipinski’s Trust (1976) Ch 235.
• The testator in 1967 bequeathed his residuary
estate to trustee on trust as one half to the
Hull Judeans Association “ In memory of my
late wife to be used solely in the work
constructing the new building for the
association.
• Held : Valid . A trust for the members of the
Association.
05/14/14 Equity & Trust II (Dr. Zuraidah Hj Ali)