Re Hetherington, decd
| Jurisdiction | England & Wales |
| Year | 1989 |
| Date | 1989 |
| Court | Chancery Division |
Charity - Religion - Masses - Gift for saying of Masses for repose of souls of testatrix and her family - Whether public benefit - Whether charitable
The testatrix left a specific legacy of £2,000 to the Roman Catholic Church Bishop of Westminster and her residuary estate to the Roman Catholic Church of St. Edward's, Golders Green, for Masses to be said for the repose of souls.
On a summons to determine whether the legacies were valid charitable trusts:—
Held, that gifts for the saying of Masses, a religious purpose, were prima facie charitable; that there was a sufficient element of public benefit as long as all the Masses were said in public and the moneys were used for the provision of stipends for the priests who said the Masses, so relieving the church funds pro tanto; and that, accordingly, since the gifts could be construed as gifts for the saying of Masses only in public as opposed to privately and the evidence was that the moneys would be used for the payment of clerical stipends, both gifts were valid charitable trusts for the saying of Masses in public (post pp. 1097A–B, 1100E, G, 1101B–E).
The following cases are referred to in the judgment:
Ashville Investments Ltd. v. Elmer Contractors Ltd. [
Baker v. The Queen [
Banfield, decd., In re [
Barrs v. Bethell [
Caus, In re [
Egan, In re [
Gilmour v. Coats [
Heath v. Chapman (
Hoare v. Hoare (
National Antivivisection Society v. Inland Revenue Commissioners [
West v. Shuttleworth (
White, In re [
The following additional cases were cited in argument:
Barclay, In re [
Close v. Steel Co. of Wales Ltd. [
Coats' Trusts, In re [
Cocks v. Manners (
Delany, In re [
F.A. & A.B. Ltd. v. Lupton [
Guaranty Trust Co. of New York v. Hannay & Co. [
Hallisy, In re (
King, In re [
Watson, decd., In re [
ORIGINATING SUMMONS
By an originating summons dated 12 November 1987 the plaintiff, John William Barratt Gibbs, the sole administrator of the estate of Margaret Josephine Hetherington, deceased, sought relief against the first defendant, Deirdre McDonnell, a person interested on the intestacy of the deceased, and the Attorney-General. The relief sought was determination of the court on the questions (1) whether upon the true construction of the will of the deceased and in the events which had happened the gift of £2,000 to “the Roman Catholic Church Bishop of Westminster for Masses for the repose of the souls of my husband and my parents and my sisters and also myself when I die” constituted (a) an absolute immediate gift to the bishop, either personally or by virtue of his office, coupled with a wish or direction not amounting to a trust or condition, or (b) a gift subject to a valid condition, or (c) a gift imposing a valid charitable trust, or (d) a gift void as contrary to public policy or otherwise; (2) whether the gift to the Catholic Enquiry Centre of Hampstead was a valid and effective charitable gift; (3) whether the gift of £200 “to Father Morley of the Roman Catholic Church Golders Green N.W.11. to help with repair of his church” was a valid and effective charitable gift; (4) whether and to what extent the residuary gift: “Whatever is left over of my estate is to be given to the Roman Catholic Church St. Edwards Golders Green for Masses for my soul” constituted: (a) an absolute immediate gift to the church coupled with a wish or direction not amounting to a trust or condition, or (b) a gift subject to a valid condition, or (c) a gift imposing a valid charitable trust, or (d) a gift void as contrary to public policy or otherwise; (5) whether the will disclosed a general charitable intent; and (6) an order appointing the first defendant to represent all persons interested on the death wholly or partially intestate of the deceased.
The facts are stated in the judgment.
J.H.G. Sunnucks for the plaintiff.
John Ross Martyn for the first defendant.
Peter Crampin for the Attorney-General.
SIR NICOLAS BROWNE-WILKINSON V.-C. This case raises a question on the will of Mrs. Hetherington dated 17 November 1980 which she made in her own hand. The testatrix was a devout Roman Catholic. At the date of her will she worshipped regularly at a church, St. Edward's, Golders Green. The two gifts in the will which are relevant are as follows:
“I wish to leave £2,000 to the Roman Catholic Church Bishop of Westminster for Masses for the repose of the souls of my husband and my parents and my sisters and also myself when I die.”
The other gift is:
“Whatever is left over of my estate is to be given to the Roman Catholic Church, St. Edward's, Golders Green, for Masses for my soul.”
The question which arises is whether or not those gifts being gifts for the saying of Masses establish valid charitable trusts.
The first defendant is one of the next of kin of the testatrix. Her own personal wish is that the gifts contained in those trusts should take effect. However, she has been joined as a representative defendant and represented by Mr. Ross-Martyn who has put forward all the arguments in favour of the trusts failing.
The nature of the Mass. in the doctrine of the Roman Catholic Church was summarised by Luxmoore J. in In re Caus [
“According to the doctrines of the Roman Catholic church the Mass is a true and real sacrifice offered to God by the priest, not in his own person only, but in the name of the church whose minister he is. Every Mass. on whatever occasion used, is offered to God in the name of the church, to propitiate His anger, to return thanks for His benefits, and to bring down His blessings upon the whole world. Some portions of the Mass. are invariable and some are variable. Amongst those invariable ‘are an offering of the Host by the priest for his own sins and for all present, and also for all faithful Christians both living and dead, and the sacrifice is offered for the...
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