Purpose Trust

purpose trust is a type of trust which has no beneficiaries, but instead exists for advancing some non-charitable purpose of some kind. In most jurisdictions, such trusts are not enforceable outside of certain limited and anomalous exceptions, but some countries have enacted legislation specifically to promote the use of non-charitable purpose trusts. Trusts for charitable purposes are also technically purpose trusts, but they are usually referred to simply as charitable trusts. People referring to purpose trusts are usually taken to be referring to non-charitable purpose trusts.

Trusts which fail the test of charitable status usually fail as non-charitable purpose trusts, although there are certain historical exceptions to this, and some countries have modified the law in this regard by statute. The court will not usually validate non-charitable purpose trusts which fail by treating them as a power. In IRC v Broadway Cottages Trust [1955] Ch 20 the English Court of Appeal held: “I am not at liberty to validate this trust by treating it as a power. A valid power is not to be spelled out of an invalid trust.”

Conceptual objections

The basis for the general prohibition against non-charitable purpose trusts is usually phrased on one or more of several specific grounds.

The beneficiary principle

A trust is, at its root, an obligation. And accordingly, “every [non-charitable] trust must have a definite object. There must be someone in whose favour the court can decree performance.” With a charitable trust, this power of enforcement is usually vested in the Attorney General. However, such conceptual objections seem less strong since the decision of the House of Lords in McPhail v Doulton [1971] AC 424 where Lord Wilberforce rode roughshod over objections to widening the class of valid discretionary trusts on the basis that there would be difficulty ascertaining beneficiaries for the court to enforce the trust in favour of.

Uncertainty

Where the objects of a trust are a purpose rather than an individual or individuals, there is much greater risk that a trust would not be enforceable due to lack of certainty. Cases such as Morice v Bishop of Durham(1804) 9 Ves Jr 399 and Re Astor [1952] Ch 534 re-affirm the court’s disinclination to enforce trusts that are not specific and detailed. It is noteworthy that the common law exceptions to the general prohibition on purposes trusts tend to relate to specific and detailed matters, such as maintenance of a specific tomb, or caring for a particular animal.

Excessive delegation of testamentary power

Purpose trusts have been attacked conceptually on the basis that it would amount to the delegation of a testamentary power, although subsequent cases have cast doubt on the correctness of that reasoning.

Perpetuity

Charitable purpose trusts are exempt from the rule against perpetuities. Private trusts are not. Accordingly, all non-charitable purposes trusts, to be valid, need to comply with the perpetuity rules in the relevant jurisdiction.

Common law exceptions

There are, nonetheless, several well recognised exceptions at common law where non-charitable purposes trusts will be upheld.

Tombs and monuments

Provisions for the building or maintenance of tombs or monuments have been upheld as a matter of grave concern in common law, although solely on the basis of ancient precedent. In Re Hooper [1932] 1 Ch 38 a trust for the maintenance of graves was upheld, but the court indicated that it would not have done so had it not been bound by Pirbright v Salwey [1896] WN 86. Such trusts still need to comply with the requirement of certainty. Hence a bequest to a Parish council for “the purpose of providing some useful memorial to myself” was struck down.[5]

Animals

Trusts for the care of specific animals have been upheld. In Re Dean (1889) 41 Ch D 552, North J upheld a trust for maintenance of horses and hounds for 50 years relying upon upon much older authorities and the monument cases.

Quistclose trusts

Historically, Quistclose trusts have sometimes been considered to be purpose trusts, but the modern view is that they are resulting trusts to the settlor subject to a power to dispose of the assets in a predetermined fashion.

[Others

In most academic textbooks, there are usually a swath of “other” purpose trusts or purported purpose trusts that are held up as a residual anomalous category. The most commonly cited example is Re Thompson [1934] 342 where a gift to Trinity Hall, Cambridge for the promotion and furtherance of fox hunting was upheld. It has been suggested academically that the case has “been elevated to a position of importance which it does not merit”.

In Re Endacott [1960] Ch 232 it was made clear that the existing exceptions at common law would not be extended; they were described as “troublesome, anomalous and aberrant”.