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LAW REFORM COMMISSION of BRITISH COLUMBIA Working Paper No. 66 Non-Charitable Purpose Trusts

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LAW REFORM COMMISSION of BRITISH COLUMBIA Working Paper No. 66 Non-Charitable Purpose Trusts LAW REFORM COMMISSION OF BRITISH COLUMBIA Working Paper No. 66 Non-Charitable Purpose Trusts This Working Paper is circulated for criticism and comment. It does not represent the final views of the Commission. It would be appreciated if comments could be submitted by May 31, 1992. November, 1991 The Law Reform Commission of British Columbia was established by the Law Reform Commission Act in 1969 and began functioning in 1970. The Commissioners are: ARTHUR L. CLOSE, Q.C., Chairman HON. RONALD I. CHEFFINS, Q.C., Vice-Chairman LYMAN R ROBINSON, Q.C. PETER T. BURNS, Q.C. THOMAS G. ANDERSON Gregory G. Blue and Elizabeth S. Liu are Legal Research Officers to the Commission. Sharon St. Michael is Secretary to the Commission. Linda Grant provides text processing and technical copy preparation. The Commission offices are located at Suite 601, Chancery Place, 865 Hornby Street, Vancouver, B.C. V6Z 2G3. The Law Reform Commission gratefully acknowledges the financial support of the Law Foundation of British Columbia in carrying out this project. Canadian Cataloguing in Publication Data Law Reform Commission of British Columbia. Non-charitable purpose trusts (Working paper, ISSN 0712-1741 ; no. 66 Cover title: Working paper on non-charitable purpose trusts Includes bibliographical references. ISBN 0-7718-9137-7 1. Trusts and trustees - British Columbia. I. Title. II. Title: Working paper on Non-charitable purpose trusts. III. Series: Law Reform Commission of British Columbia. Working paper ; no. 66. KEB240.A72L38 1991 346.71105’9 C92-092010-1 KF730.L38 1991 Introductory Note The Commission makes a general practice of inviting comment and criticism on its research and analysis prior to making a Report to the Attorney General on any particular subject. One of the means by which the Commission carries out this objective is the circulation of Working Papers to those persons, groups or organizations to whom the particular subject under study would be of interest. This process of soliciting the comments of interested persons and bodies provides the Commission with the benefit of the experience and views of the community, and thereby assists the Commission in making proposals for the reform of the law that are both relevant and sound. This Working Paper represents the present state of the Commission’s research on the subject under study, and marks the point at which the views and comments of others would be of greatest value to the Commission. The final recommendations of the Commission will be developed in the light of the comment and criticism received. It would be appreciated if comments and criticism were submitted by May 31, 1992, to the following address: Law Reform Commission of British Columbia Suite 601, Chancery Place 865 Hornby Street Vancouver, British Columbia V6Z 2G3 TABLE OF CONTENTS I INTRODUCTION.........................................................1 A. General..............................................................1 B. The Working Paper....................................................1 C. Terminology..........................................................2 II PURPOSE TRUSTS.......................................................3 A. General..............................................................3 B. The Three Certainties...................................................4 C. The Necessity of a Beneficiary...........................................4 1. The General Rule: the Object of a Trust Must Be a Person. 4 D. Perpetuity Issues: A Further Pitfall........................................6 E. Limited Legislative Reform..............................................6 1. Invalid Purpose Trusts and Powers of Appointment. 6 2. Legislative Reform in Ontario. ......................................6 3. Legislative Reform in British Columbia.. 7 4. The Scope of Section 21............................................8 F. Charitable Trusts......................................................8 1. General.........................................................8 2. The Preamble to The Act of 1601.....................................9 3. The Classification in the Pemsel Case.................................9 4. The Meaning of the Pemsel Categories. ..............................1 0 (a) Relief of Poverty............................................1 0 (b) Advancement of Education....................................1 0 (c) Advancement of Religion. ....................................1 1 (d) Other Purposes Beneficial to the Community. 1 2 5. The Requirement of Exclusivity for Charitable Trusts.. 1 3 (a) The Rule of Exclusivity.......................................1 3 (b) Section 44 of the Law and Equity Act............................1 5 (c) The Interaction of Section 44 of the Law and Equity Act and Section 21 of the Perpetuity Act............................................1 5 6. Charitable Trusts and the Rules Against Perpetuities, Inalienability, and Accumulations. .................................................1 6 7. The Doctrine of Cy-pres And The Scheme-making Power. 1 7 (a) General....................................................1 7 (b) Impossibility. ..............................................1 8 (i) Initial Impossibility......................................1 8 (ii) Supervening Impossibility. ...............................1 8 (c) Impracticability.............................................1 9 (i) Initial Impracticability. ..................................1 9 (ii) Supervening Impracticability. 1 9 ( d ) Cy-pres in Context...........................................2 0 (e) Non-Cy-pres Schemes........................................2 0 G. Summary...........................................................2 1 III IS THERE A NEED FOR FURTHER REFORM?.............................2 2 A. General.............................................................2 2 B. The Case for the Non-Charitable Purpose Trust. 2 2 C. The Case Against Further Liberalization In Relation to Purpose Trusts.. 2 4 D. Tentative Conclusion on the Need for Further Reform. 2 5 E. The Deficiencies of Section 21..........................................2 5 1. Duration. ......................................................2 5 2. Trust or Power?..................................................2 6 3. Mixed Charitable and Non-charitable Objects. 2 7 IV REFORM...............................................................2 9 A. General.............................................................2 9 B. Purposes as Trust Objects..............................................2 9 C. Duration............................................................3 1 D. Enforcement of Non-Charitable Purpose Trusts. 3 2 E . Cy-Pres and Non-Charitable Purpose Trusts.. 3 4 1. Alternatives to Cy-pres............................................3 4 2. Application of Trust Property According to Settlor’s Directions.. 3 4 3. Resulting Trust..................................................3 5 4. Application of Trust Property to a Charitable Purpose.. 3 5 5. Transfer to the Crown.............................................3 6 6 . T h e Cy-pres Solution. ............................................3 6 (a) General....................................................3 6 (b) Transposing Cy-Pres to the Non-Charitable Sphere. 3 7 (i) No Equivalent to General Charitable Intent. 3 7 (ii) A More Relaxed Standard of Similarity. 3 8 F. Substitution of Objects On Grounds of Obsolescence or Expediency. 3 9 1. General........................................................3 9 2. Guidelines for the Court...........................................4 1 (a) The Nature of the Original Purpose.. 4 1 (b) Consent of the Settlor. .......................................4 2 (i) When the Settlor is Living. ...............................4 2 (ii) Non-Charitable Purpose Trusts Under a Will.. 4 2 (c) The Substituted Purpose. .....................................4 3 G. Variation of Administrative Powers Under a Non-Charitable Purpose Trust. 4 4 H. Who Should be Able to Apply for Variation of a Non-Charitable Purpose Trust?.. 4 5 I. Trusts With Mixed Charitable and Non-Charitable Objects. 4 5 1. Is There Still a Need for a Provision like Section 44 of the Law and Equity Act? ...............................................................4 5 2. Mixed Purpose Trusts with Specific Non-Charitable Objects. 4 6 J. Summary...........................................................4 7 V CONCLUSION..........................................................4 9 A. General.............................................................4 9 B. List of Tentative Proposals. ............................................4 9 C. Draft Legislation. ....................................................5 1 D. Invitation for Comment................................................5 1 APPENDIX A DRAFT NON-CHARITABLE PURPOSE TRUST LEGISLATION..............5 2 APPENDIX B THE RULES AGAINST PERPETUITIES, INALIENABILITY AND ACCUMULATIONS AS THEY RELATE TO PURPOSE TRUSTS..............5 8 A. The Rule Against Perpetuities...........................................5 8 1. The Basic Rule..................................................5 8 2. Application of the Rule Against Perpetuities to Charitable Trusts.. 5 9 3. The Perpetuity Act .............................................6 0 B. The Rule Against Inalienability..........................................6 1 C. The Rule Against Accumulations. .......................................6 1 D. Pension Plans, RRSPs and Other Exempt Trusts. 6 2 CHAPTER I INTRODUCTION A. General The precise nature
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