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Claire DeLune is a philanthropist of some note who lives on the Wirral. She inherited a huge amount of money from her mother, a famous composer. Her life has been dedicated to charitable activity and to giving away her fortune to charitable causes. In anticipation of her impending death, she has mad...

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Claire DeLune is a philanthropist of some note who lives on the Wirral. She inherited a huge amount of money from her mother, a famous composer. Her life has been dedicated to charitable activity and to giving away her fortune to charitable causes. In anticipation of her impending death, she has made a will with the following provisions: a. “£30,000 for the founding of a charity for the worship of Diana, goddess of hunting.” b. “£4,000 to found a school on the Wirral which is to be named “DeLune Academy” in honour of its patron and benefactor Ms Claire DeLune.” This independent public school would provide free uniforms and school meals to poor students. c. “£10,000 to be held on trust for the purpose of alleviating the plight of the homeless and destitute aristocrats in the Liverpool City Region.” d. “£34,000 to be held on trust for the purpose of advancing the cause of the ‘Remain in the European Union (EU) Party (REUP)’ – a political organisation whose sole object is to campaign for the United Kingdom to stay in the EU.” e. “£5,000 for the establishment of a Merseyside archery competition. Entrants can only be drawn from children who are between the age of 6 and 11 and who also only live in Crosby.” f. “£30,000 for the promotion of darts.” Advise on the validity of the clauses, using relevant primary and secondary source material. Charities The question would require us to analyse pertaining to the 6 scenarios, as to whether those are charitable trust which have been created by Claire De Lune as she left her will. Before entering to the crux of the question, it can be noted that Claire De Lune has a will where he has to satisfy the requirements under section 8 of the Wills Act (1837), where a ‘will’ would only be valid if it was in writing, signed by the testator where the signature was intended to give effect to the will. It can be noted before delving in to the 6 scenarios, one can note that normally the one who enforces charitable trusts are the Attorney General in the name of the Crown in which they are regulated and overseen by the Charity Commission, which plays a predominant role in the supervision and regulation of charities. In order for these scenario to have a valid charitable purpose, it can be seen that it must first satisfy that the money given must be for charitable purposes which can be seen under 4 sources such as the Preamble to Charitable Uses At 1601, the 4 criterias laid in the case of Commissioners for Special Purpose of Income Tax v Pemsel ‘Heads’ or section 3 of the Charities Act 2011 as propounded by Professor Debra Morris in Elasticity of the Boundaries in England and Wales: What is (And isn’t) Charitable? An Opportunity list (or not yet fully embraced) that the definition of charitable purpose under statute has created the biggest special potential for elasticity in determining the boundaries of what is not charitable in English law. Secondly the charity itself must satisfy the public benefit requirement as illustrated in Independent School Council v The Charity Commission [2012], where the public benefit requirement now is not presumed as it must now be presented with evidence to the Charity Commission, tribunal or court despite being selfevident. The first scenario would be that gift of 30, 000, for founding of charity for the worship of Diana, goddess of hunting. Hence, one needs to identify whether firstly it is for a charitable purpose. It can be illustrated in the case of Income Tax Special Purpose Comrs v Pemsel where Lord Macnaghten provided an organising classification where he identified 4 ‘heads’ of charity which is poverty, advancement of education, religion and other purpose beneficial to the community. It can

be seen that the purpose might fall under the trust of religion which has been codified under the Charities Act 2011 , under section 3(1)(c) of the Charities Act . The question ponders whether worship the goddess Diana of hunting, would be for the advancement of religion. Conspicuously, in section 3(2)(a) of the Charities Act (2011), stated that religion now includes involve more than one god or a religion which does not believe in god as illustrated in Varsani v Jesani, stated that the teachings of Hindu, which believe a manifestation of the Supreme Religion was defined as a religion. Hence, obviously, it can be seen that the worshipping Diana, is for the advancement of religion as she’s a goddess herself. It can be seen that, the public requirement would need to be satisfied. Hence, the public requirement may be illustrated in Oppenheim v Tobacco Securities Trust Co Ltd, where Lord Simmonds identified that there are 2 characteristics which must be established firstly that the class must not be numerically negligible and that the member of class cannot be defined by means of personal nexus. However this was criticised in Dingle v Turner, where Lord Cross, held that it was a strict approach where they should have taken others such as size of class and purpose of trust. Furthermore, it was propounded by Pearce and Barr, that the personal nexus test doesn’t apply to all trusts for advancement of religion. Hence to satisfy the meaning of public, one can take precedent in the case of Gilmour v Coates, that the prayer for benefit of other was not public benefit as the nuns were living in seclusion. It can be distinguished from this case that the founding charity for worshipping Diana is open to anyone who wants to pray in which it can be said to satisfy the public requirement

However, the question as for it to be beneficial as illustrated in Re Cranston where a hybrid test of both objective and subjective test is more favoured. However, it can be noted in the Charity Commission, Plymouth Brethren Gospel Hall Trusts, where if members of the Plymouth brethren church don’t follow a certain procedure, they will get punished and isolated where one must look that the harm must be a level which is subversive which reaffirmed in Luxton v Evans. It can be seen in Thorton v Howe, where devil worshpping doesn’t satisfy the public benefit as it is against morality. Hence applying this, it may seem that worshipping the Goddess of Hunting, may be against morality, as hunting may seem to be against the very nature of human morality. However, hunting can’t be said to be so subversive similarly to devil worshipping. In the case of Shergil v Khaira, the Court of Appeal held that it was not appropriate for a court to pronounce on matter of religious doctrine and practice because it is not a matter of law. Hence, it can be analysed that judges don’t really emphasize on benefit requirement as long as its not that subversive as it is not a matter of law. Even Cross J in Neville Estates v Madden states that the law assumes that any religion is better than none and some benefit accrues to the public when attending places of worship and mixing with fellow citizens. Hence, it can be said that hunting may not be so subversive like devil worshipping and it benefits the public as many people would attend the place of worship and mixing around. Hence it can be said that it may be beneficial.

The next scenario would be the 4,000 pounds to found a school on Wirral which is to be named ‘De Lune Academy’, in honour of its patron and benefactor Ms Claire De Lue’. Hence it can be seen that this is in relation to section 3(1)(b) of the Charities Act (2011) , as illustrated in IRC v McMullen where Lord Hailsham held that education is a balance and systematic process of instruction, training and practice containing… both spiritual, moral, mental and physical elements. Conspicuously, the money given to school would be for the charitable purpose of education, as in the

case of Christ’s College Cambridge, the payment of teachers and administrative staff of an institution is considered to be charitable. Similarly, the 4,000 pounds, is used for free uniforms and meals can be said to be a charitable purpose for education. However it may be noted in Re Endacot, that the court held the creation of trust for erection of statue of a historically unimportant person is not validly charitable because it did not benefit anyone. Nevertheless, it can be distinguished that money being used for De Lune Academy is not only for the honour of Ms Claire De Lue as it is also for the purpose of advancement for education as it would be paid for free uniforms and school meals to poor students in which it can be said that it is a charitable purpose. However, as to whether it satisfy the public benefit requirement, firstly in the scenario of benefit, it can be seen in the case of Re Cranston where the objective and subjective test should be taken into account as a hybrid approach as in National Anti-Vivisection Society v IRC, where it must not bring a public disadvantage objectively, it can be said it doesn’t as it’s trying to advance education and relief students who are poor by giving them free uniforms and school meals. As for the subjective test, it can be illustrated in Re Foveaux, where it is not for the court to enter or pronounce any opinion on the merits of the controversry of a charity. Of course subjectively, it seems to be a public benefit as in the eyes of the school giving free uniforms and school meals to poor students would be beneficial. For the requirement of public, it can be illustrated in ISC v Charity Commission for England and Wales where the Charity Tribunal held as long as trustees were making more than a ‘token or de minimus’ effort to include the poor, independent schools would pass the public benefit test in this case would be fee charging. It can be seen that public here requirement also concerns to include the poor and as long as one goes above the deminimus principle, it would satisfy the public requirement. Furthermore, Mullender in ‘Charity law, education and public benefit: an analysis Oakeshottian analysis’ [2012], held that charging a small fee can amount to public as a small token of adequacy would satisfy the de minis principle. Similarly, it can be applied that the independent public school would satisfy the de minimus principle as the independent school provided uniforms and school meals to poor students which constitute a bigger public however the decision of ISC’s case may be criticised by Stephen Lloyd in ‘Where does independent school case leave us now’ 2012, where there was a mix dissatisfaction at what appeared to be a compromise decision exhibiting a failure to deliver the desiderated, longed for clarity. Nevertheless, it can be seen that the second scenario, would be a charitable trust. The third scenario would be that 10, 000 pounds was held on trust for alleviating the plight of homeless and destitute aristocrats in Liverpool City Region, it can be illustrated in section 3(1)(a) of Charities Act 2011, which would be the prevention or relief of poverty. The term poverty can be illustrated in Re Coulthurst, as Sir Raymond Evershed MR, stated that context ‘poverty’ doesn’t mean destitute or it shouldn’t be understood as something experienced only those who are the bottom of society as there are different social levels as sometimes a middle-class can fall on hard time which would fall under the understanding of poverty since they ‘go short’ compared to their peers. Similarly, it can be seen that the homeless and destitute of ‘aristocrats’ still falls under the definition of poverty despite being aristocrats as they fall short of their peers. This was also reaffirmed in CC4, Charities for the Relief of the Poor (2008) section C1, where the charity Commission recognise the meaning of poverty as it the guidance recognises that poverty is not confined to destitute and people may qualify for assistance from a poverty charity whether or not they are eligible for state benefit. The next question raise would be whether it is for relief or prevention of poverty? As explained in CC4 Charities for the Relief of Poor (2008) section C1.p8, where the term prevention and relief sometimes are used interchangeably however prevention is

more towards something such as money management training for someone at risk of poverty while relied is to make sure the people in poverty gets back to the same social standing as others. Nevertheless, it can be seen that the charity is used to relieve/prevent poverty to relief aristocrats to get back to the same social standing as other aristocrats. Next, as to whether it satisfy the public requirement, it can be illustrated in Re Segelam (Decd) that the personal nexus rule would not apply to poverty as ‘a gift for the relief of poverty is no less charitable because those who poverty us to be relieved are confined to a particular class limited by ties of blood and employment. It can be seen in Re Compton, where gifts to the ‘poor relations’ of an individual had been held charitable despite the fact it might fail the personal nexus test, it was regard as ‘anomalous’ to the exception of the principle and it was reaffirmed in Dingle v Turner where Frank Dingle left his residuary estate to trustees, the income to be used to pay pensions to the ‘poor employees’ of E Dingle & Co, a company that was jointly owned, where the House of Lords held that the personal nexus rule had no application to trusts for relief of poverty. Recently, it was also affirmed in Atorney General v Charity Commission (The Charity Commission Poverty Reference), the Upper Tribunal clearly affirmed and expressed its view that there was no requirement for a trust for relief or prevention of poverty to satisfy the public benefit requirement by benefitting a large or part of community is enough. Hence it can be analysed that the aristocrats does constitute a part of community and it is beneficial as the charity would help them get back on the same social standing as other aristocrats in that particular community. Hence it would seem the 10, 000 pounds would be a charitable trust. The 4th scenario where 34, 000 pounds to be held on trust for the purpose of advancing the cause of the ‘Remain in the European Union’ (REUP), a political organisation whose sole object is to campaign for UK to stay in EU, it can be construed that it is a charitable purpose under section 3(1) (e) of the Charities Act 2011 which would be the advancement of citizenship or community development as campaigning staying in Europe might be socially and economically advantages to the people of UK, as being part of EU would enable people to be economically integrated as they don’t need to pay import customs. However, it may failed as the main question in dispute is that are these charities towards political objects due to the fact that this ‘potential charity’ is pushing towards the reform or campaigning that UK should stay within EU which can be defined as a political object as illustrated in Bowman v Secular Society, states that equity has always refused to recognise as charitable ‘purely political objects’. Prima facie it seems that the campaigning for UK to stay in EU which would result a change in legislation would not be a charity as it was reaffirmed in National Anti-vivisection society v IRC, where Slade J held that the court will not regard changing of law as charitable if the main object is to procure an alteration in the law. However, it can be argued in Mc Govern A-G where Slade J held that there are many charities in which are in fact charitable organisation, but they just somehow fall within towards a political purpose. Hence there might be a limited degree of political favour may be permissible provided that it was not the main purpose of the trust where it must be ancillary as illustrated in Speaking Out: Guidance on Political Activities and Campaigning by Charities, where the commission acknowledge that all charitable organisation somehow would be ancillary towards a political agenda, so as long as the charity ‘is engaging campaigning to further support its charitable purpose, then it may be carried out’. However applying this, it can be seen that the main purpose for the organisation is to further their political agenda on making sure that UK remains in EU. It can also be illustrated in Re Koeppler, that if the advancement for holding conference was a neutral advancement as in this case, the conference was to talk and share opinion on different topics such as superpowers of Europe, wages and etc, it can be said to be charitable. Hence it may be distinguished

that in this case, the purpose is not neutral as it aims to one point of making sure that UK stay in EU, which is to be held as a political purpose. Nevertheless, charitable trusts with political objects have been much controversy, as stated by P.G. Turner in Charitable trusts with political objects [2011], where he states all charitable trusts, would always lean to a political object and sometimes it may not be wrong if it doesn’t. just because it leans to a political object doesn’t mean that it is not genuine charitable as illustrated in Aid/Watch where the High Court of Australia declared that Australian charity law ought not to disqualify many political purpose that they have, as it allowed it but have certain restrictions to it. Nevertheless, English law was reluctant to adopt this case and still dictates that a charity towards a political object can never be a charitable trust, unless only if it is ancillary. Hence it can be concluded that the 34, 000 pounds would not be a charitable trust The 5th scenario is pertaining to 5, 000 pounds for the establishment of a Merseyside archery competition for only children between the age of 6-11, it seems that it might be for a charitable purpose under section 3(1)(g) of the Charities Act pertaining to advancement of mature sports which can be extended to section 3(2)(d) of Charities Act (2011) where there must be sufficient level of physical and mental skills to promote health. It can be seen that the Commission has proposed certain guidance as what can amount to a sports. It can be illustrated in Charity Commission, Charitable Status and Sports (RR11) states amateur sports need to be beneficial in nature as it needs to be healthy sports which makes you fitter and less susceptible to disease. Fit is defined as stamina and strength but what does stamina and strength mean? One may look in the Charity Commission of Cambirdgeshire target shooting association, where comparing with stamina and strength doesn’t fall under prone shooting. A person staying still while pulling a trigger doesn’t satisfy the physical exertion of section 3(2)(d) of the Charities Act as it doesn’t satisfy or reach the de minis rule of physical exertion where a list of sports such as crossbow and darts cannot be a charity for sports. Analysing this, it can be distinguished with archery, as archery doesn’t require just pulling a trigger as it requires a physical exertion of pulling a bow and arrow with sufficient level of mental skills to take aim. Hence it can be seen that the 5,000 pounds for the archery competition will be regarded as a charitable trust. However, whether it satisfy the requirement of public benefit, firstly as for the element of benefit, as illustrated in Re Cranston that it is a hybrid of an objective and subjective test, it can be seen that the sports of archery is of course beneficial as it helps people to be healthy and less prone to disease for archery is a sports which requires physical exertion and mental strength both objectively and subjectively. However, it may fail the public requirement as illustrated in IRC v Baddeley, where a charity cannot be used to create a class within a class as if it confine to its use to a selected number of persons, however numerous and important, it is clearly not charity as it is not a general public utility. Similarly, it can be said that the archery competition was for people in Crosby, and later it was confined to only people at the age of 6 to 11, cannot be said to be for the public. Hence it can be concluded that the 5, 000 pounds for archery cannot be considered to be a charitable trust. Lastly 30, 000 pounds for the promotion of darts, it can be illustrated in Re Notage that a mere promotion of sports would not be for the advancement of amateur sports as there need to be some other factors than playing sports to justify that it is charitable trust. However, it can be said that this is...