Operation of the Charity in UK Law

: it is well established that in the case of a gift to a charity (that is, to some body of persons or organization admittedly charitable) where no general charitable intention is present, then (1) if the charity has ceased to exist before the Will comes into operation, the felt lapses; but (2) ii the charity is still in existence at the date mentioned, it is effective as a gift to the extent the interests of the next of kin (or of whoever else take in default of the charitable interest taking effect) are forever excluded notwithstanding the later dissolution or disappearance of the charity.

Such a gift will wholly fail if the purpose is either so vague or uncertain or so impracticable that; the Court cannot execute it.

"Charity proceedings" are defined in section 33(8) as meaning proceedings in any court (so that includes the County Court) in England or Wales brought under the court's jurisdiction with respect to charities or brought under the court's jurisdiction with respect to trusts in relation to the administration of a trust for charitable purposes. That is to prevent charities from frittering away money subject to charitable trusts in pursuing litigation relating to internal disputes.

It remains, however, to consider whether the agreement is made void by section 36(3). As I have said, earlier in this judgment, a contract into which, by virtue of section 36(3) of the Act, it was unlawful for the charity trustees to enter will, prima facie at least, be void for that reason.

In rejecting the submissions for the Attorney-General I do not seek to undermine or belittle in any way the concerns expressed by his counsel to which I have already referred. First there is his concern that potential donors should not be deterred by a belief that their intentions will be overridden by a too ready use of the cy-près jurisdiction.

The need to have regard to the spirit of the gift requires the Court to look beyond the original purposes as defined by the objects specified in the declaration of trust and to seek to identify the spirit in which the donors gave property upon trust for those purposes. That can be done, as it seems to me, with the assistance of the document as a whole and any relevant evidence as to the circumstances in which the gift was made.

It is a cardinal rule, common to English and to Scots law, that a man may not delegate his testamentary power: to him the law gives the right to dispose of his estate in favour of ascertained or ascertainable persons. He does not exercise that right if in effect he empowers his executors to say what persons or objects are to be his beneficiaries.