Law of Equity, Trust and Probate: a study about non-charitable purpose trust with the main case law of Morice v Bishop of durham.

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1.0 INTRODUCTION
Generally, for a trust to be a valid trust, it must have the element of human beneficiaries,
otherwise, the court would not enforce it because there would be no enforcer to enforce such
trust. So, what is in the case of purpose trust where it lacks the element of human beneficiaries?
It must be noted that only purpose trust that is charitable would be a valid trust because the
enforcer would be Attorney General who would act for public interest. So, at the first glance,
non-charitable purpose trust is invalid. In the case of Re Astor’s Settlement Trust, it was held
that where inter vivos settlement for purposes and not individuals, it is invalid for uncertainty.
Also, Lord Viscount Simonds in the case of Leahy v Attorney General for New South Wales1
opined that a gift can be made to persons including to a corporation, but it cannot be made to a
purpose of an object unless the purpose is charitable. However, almost every general rule has its
own exception and in this case, it would not be excluded. There are few exceptions and things
need to be followed to make a non-charitable purpose trust, a valid trust. Those requirements
include that firstly, it must be certain, enforceable, do not exceed the delegation power by
trustees and also must comply perpetuity period which is 21 years or less. Non-compliance will
render the purpose trust as void and the trust that failed, will become the resulting trust which the
property would be resorted back to the settlor.
Through this research, we are going to unveil comprehensively about the topic of non-
charitable purpose trust with referring mainly to the case of Morice v Bishop of Durham2 which
is a very old case in determining whether a trust is charitable or otherwise. In this case, we will
focus on the elements needed to make a valid purpose trust like we mentioned earlier regarding
the enforceability, certainty, excessive delegation of testamentary power and also perpetuity
period. We will also make a thorough analysis and pointing out our legal opinion based on the
abovementioned case and the requirements needed for a valid non-charitable purpose trust. Apart
from that, we want to observe on how the court would validate a non-charitable purpose trust in
order to honour the will of the testator. This case is very important for the validity of non-
charitable purpose trust.
1 [1959] AC 457
2 (1804) 9 Ves.Jr. 399.

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2.0 SUMMARY CASE OF MORICE V BISHOP OF DURHAM
In this case, the testatrix left a will saying that she is giving a portion of her legacies to
her next of kin and others while the other portion of her property is to be made a trust to the
Bishop. In the will, the intention of the trust is stated as ‘such object of benevolence and
liberality as the Bishop of Durham in his own discretion shall most approve’. She also appointed
the Bishop as her sole executors to pay her debts and legacies and with the balance of the estate
given to the Bishop to be used in his own discretion, fulfilling the objects of benevolence and
liberality. Later on, the next of kin of the testatrix apply for the will to be established except for
the residuary part, where he applies for it to be declared void.
The Plaintiff contention in this case is that if a trust is expressed in vague and indefinite
terms, that the court cannot interpret it, the trust must entirely fail and where the object is not
stated, it shall become a trust for the next of kin. Therefore, the court is to interpret the term
‘benevolence and liberality’ that is used in the will, whether or not it can be taken to means
charity and can the Bishop therefore be considered as the trustee for charity.
The term ‘benevolence’ may be related to charity but not the term ‘liberality’. The term
liberality itself, may not be in any way be understood as anything that will benefits the public.
Even if it did, it will be a trust that the court cannot execute. The term liberality has a very wide
definition that it may also include a trust given with intention to give comfort to a person instead
of the provide necessity to a person in needs, as oppose to the true nature of a charitable trust.
Moreover, there has never been any trust for comfort that is upheld before.
In Brown v Yeall, the object in the will was described in clearer words and with no doubt
is of charitable in nature which is for the advancement of religion. Yet, the trust failed because
the court sees that this trust is unable to be executed by the court. Meanwhile in Attorney
General v. Whorwood, it was held that if in a will, a part of it is charitable in purpose while the
intention of another part of it cannot be defined, the whole must fail.
On the other hand, the defendant contended that in dealing with trust, the court should
upheld the trust and carries it purpose into effect once it appears to the court that the trust is
intended for charity, even though there is some defect in the trust such as inexistence of
instrument.

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In referring to a decision made by Lord Chief Justice Wilmot in this case, he stated that if
a trust cannot be executed in particular mode, the court must still honor the intention of the
testator. Reference should also be made to the case of Frier v Peacock where the will only stated
that the object is to ‘the poor’. The term used is very general that it is impossible to be executed
precisely according to the intention. However, the court devoted itself to charity that it still
carries out the will by applying it to the maintenance of 40 poor boys in Christ’s Hospital. For
that reason, the defendant thinks that the court should uphold this trust.
In the case of Moggridge v. Thackwell, it was held that the word ‘charity’ is always used
to describe benevolence. In that sense, the objective is to help a person who has been reduced to
a situation where he really needs to be assisted. The term benevolence and liberality that comes
together should not changes assumption on the intention of the testatrix, which is to use her
property for charitable purpose. Therefore, when there is no possible way for a will to be strictly
executed, it should still be executed, even in some other way.
The plaintiff later on agreed that the when an object of a trust is charitable, the
uncertainty and indefinite nature of it shall not be made used as an excuse to make it fail.
However, the objection here is that this trust is not even charitable, in the first place. Based on
Moggridge’s case, it was held that if a man left a will for charity but no direction to it, the court
shall dispose it to such charitable uses as the court thinks fit. But here, it was questioned whether
the testatrix really means for the trust to be used for charity. It is extraordinary that the testatrix
avoid using the word ‘charity’ to deliver her charitable intention to the trust, while the word itself
is very likely to occur. Why doesn’t she just clearly use the word ‘charity’ to make her point that
the trust is to be used for charitable purposes?
In deciding this case, Sir William Grant MR held that, the question to be tried is whether
the trust to the Bishop is a charitable trust? It is pertinent to note that the court is agreed that the
trust is made, not for the personal benefit used of the Bishop. In addition, based on case Gibbds
v. Rumsey, the court held that every trust should have certain object, except for charitable trust.
Where a charitable intention shown in a trust, no matter how general the object is, it must be
upheld. In that situation, the crown will decide the mode of disposal of the will. All these make it
seem like the judge is agreed that the trust should be upheld.

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However, in construing the will, the use of word ‘charitable’ seems to be intentionally
avoided. Consequently, should the will still be executed, the Bishop will have a huge power to
exercise his discretion on the trust. Here, there is suspicion arises as to whether there has been
abuse of the nature of charitable trust which upheld trust with uncertain object in this case.
The court thus decides that, since there is no specific purpose stated to be applied for the
trust on the residue, and the word use in the will is not synonymous to the word ‘charity’ or
‘charitable’. The residue therefore cannot be said to be of charitable purposes. As the trust is too
indefinite to be disposed of to any other purpose, the residue that remains undisposed of must be
distributed among the next of kin of the testatrix. This decree was affirmed by the Lord of
Chancellor, upon appeal.

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3.0 REQUIREMENTS IN DETERMINING THE VALIDITY OF THE NON-
CHARITABLE PURPOSE TRUST
There are four requirements that need to be met to make a non-charitable purpose trust to
be valid namely by ensuring its enforceability, avoiding uncertainty on part of the objects,
ensuring the absence of excessive delegation of testamentary power and observing the perpetuity
period.
3.1 The Beneficiary Principle : Enforceability
As a general rule, a trust must be in favour of human beneficiaries or a recognised
charitable purpose. This is known as the “beneficiary principle”. As we all know, a trust is a
form of obligation. The objection for this rule is that there cannot be an obligation upon the
trustee unless there is a correlative right in someone else to enforce it. Under charitable purpose
trust, the Attorney General is in charge with the duty as the enforcer. However in case of non-
charitable purpose trust, there is no one who can enforce the trust. Thus, the trust would be void
unless there is human beneficiaries capable enforcing the trust.
The basis of this requirement was stated by Sir William Grant MR in the case of Morice v
Bishop of Durham3. He emphasised that, for a trust to exist, there must be someone who has a
stand to bring the trustees to court to enforce the trust obligation against the legal owner. Thus,
the court must find definite object whom is the beneficiary, who can bring the trustee to court.
Sir William Grant MR said that:
“There can be no trust, over the exercise of which this Court will not assume a control; for an
uncontrollable power of disposition would be ownership, and not trust ...There must be
somebody in whose favour the court can decree performance.”
By virtue of the above statement, only those who are intended to benefit the beneficiaries
will have the standing to enforce a particular trust. The beneficiary principle can be regarded as a
proposition that follows the requirement of certainty of objects. This is because if it is a purpose
trust, then it will be impossible to determine any definite object of the trust. For this reason, there
3 (1804) 9 Ves 399

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is no person for whose benefit that court can order the trustee to carry out the trust. It is strongly
agreed that the reason for requirement of human beneficiary is rooted in the ability of the court to
control the trust. Lord Eldon also agreed with the link between control and requirement of human
benefit in the execution of the a trust. He opined that a trust must be in a nature that capable of
being administered by the court, and to do so, subjects and objects must be certain. This shows
how important human beneficiary is when it comes to non-charitable purpose trust.
Another statement regarding the beneficiary principle is by Roxburgh J in the case of Re
Astor Settlement Trust4. In this case, Viscount Astor made a settlement of most of the shares of
‘The Observer Limited’. The income from the trust fund was set up to be applied to a number of
purposes. It was held that the trusts were invalid because they were non-charitable purpose trusts
which no one could enforce and the trust also included objects which were too uncertain. Based
on this case, the judge said that a trustee would not be subject to equitable right, unless there is
someone who could enforce such trust. The judge further explained that the essence of this
principle is that for a trust to exist, there must be someone other than the trustee who has the real
beneficial ownership of the trust property. If there is no such person, there would be no one to
enforce obligations against the trustee and hence, there is no trust obligations to enforce. Due to
this, the legal owner will own it for his own absolute benefit. Perhaps the clearest statement of
this principle is to be found in Re Endacott5 where Lord Evershed6 stated that in order to make
non-charitable purpose trust valid, beneficiaries must be ascertained.
It must be noted that the rationale for the requirement of that a trust should have a human
beneficiary benefiting from the trust is because there must be someone who can take action
against the trustee, if the trustee simply fail in their obligations towards the trust. Equity realises
that not all trustees may act in the best interests of the beneficiaries but they may instead act to
benefit themselves. This explains the statement by Sir William Grant MR in the case of Morice v
Bishop of Durham, “there must be somebody, in whose favour the court can decree
performance.” Therefore, beneficiary must be certain to make this trust enforceable or else the
court could not enforce it because it would be too vague and maybe, too wide, making it
impossible to be administed.
4 [1952] Ch 534
5 [1960] Ch. 232
6 ibid., 246.

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3.2 Uncertainty
Charitable trusts, just like private trusts, are subjected to a test of certainty of objects.
In deciding the certainty of the object, the test it that whether the object is exclusively
charitable? In other words, if the trust funds may be used solely for charitable purposes, the
test will be satisfied. Therefore, it is unnecessary for the testator to specify the charitable
objects which are intended to take as the trust property. This mean, if the trust instrument
manifest a clear intention to devote the funds for charitable purpose, the test will then be
satisfied.
However, it is different in the case of non-charitable purpose trust. If non-charitable
purpose trusts are to be recognised by the law, they can only be valid if it is expressed with
sufficient certainty to enable the court to control the performance of the trust. This usually
arises in cases where incompetent draftmanship has failed to create a charitable trust.
For example, this can be seen in the case of Morice v Bishop of Durham7 where the
court decided that the gift failed the test for charitable objects. However, to make sure that
the test will be approved, a gift on trust for charitable purpose will need to satisfy this test.
As stated in this case, a fund was given upon trust for such objects of benevolence and
liberality as the Bishop of Durham shall approve. The court held that the gift was not valid as
the objects were not exclusively charitable and the resulting trust was created. In this
context, ‘benevolence’ and ‘liberality’ are of wider concept than charity, thus, it was stated
that the trust was not applicable for charitable purposes only. Moreover, with the uncertainty
of purposes, the trust was hence held as void. This shows how essential certainty is in
ensuring its enforceability.
Thus, it can be concluded that, if there is a clear trust, but for uncertain objects, the
property must be undisposed to give benefit to the beneficiaries. However, this doctrine does
not hold goods with regard to trust for charity. Therefore, where a charitable purpose is
expressed in general, the bequest will not fall on account of the uncertainty. In context of the
case of Morice v Bishop of Durham, it is the duty of such trustees and the Crown to apply
the money to charity in the sense which the determination have affixed to that word in this
court, either such charitable purposes as are expressed in the Statute or to purposes having
7 (1804) 9 Ves.Jr,399.

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analogy to those.
This objection can be met by specifying in sufficient details of the purposes to which
the property is to be applied. Trusts for specific purposes like feeding the testator’s animals,
or maintaining a tomb or monument, usually will pass this test. But for general projects, even
carefully drafted, they are likely to be held void. The point only becomes significant, of
course, if the problem of the beneficiary principle has been summoned. Therefore, from the
above discussion, it shows that the certainty of object plays a significant role to validate the
non-charitable purpose trust. If non-charitable purpose trusts are recognised at all by the law,
they can only be valid if it is expressed with sufficient certainty to enable the court to control
the performance of the trust.

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3.3 Excessive Delegation of Testamentary Power
In order for a non-charitable purpose trust to be valid, there shall be no excessive
delegation of testamentary power. The general rule is that trustees do not have the right to
delegate the tasks that they are required to perform under the trust. This is because the settlor had
trusted the trustee to perform them himself. This rule also applies to delegation of power between
trustees and all trustees must abide and act unanimously8.
Additionally, this rule, which only applies to testamentary trusts9, asserts that only the
testator has the power to dispose of his or her property and that the testator must not give the
power to select who will receive the benefits of the estate10. In the case of Brewer v McCauley11,
the Supreme Court of Canada held that the testatrix had used a form of words which gives her
trustees a power of appointment for the purpose of allocating among the named purposes instead
of simply constituting a trust for the purpose. Therefore, the purpose trust considered as void and
appeal has been dismissed12 because of existence of excessive delegation of testamentary power.
Apart from that, before constituting purpose trust, one must bear in mind that in order to
give effect to this kind of trust, powers might be given for trustee to willingly perform. However,
it has been decided that a purpose trust which is created by will shall be void because it is left on
the trustee upon the application of the will13. Here, the trustee might use the power excessively
making it hard to ensure the trust being enforced according to the original will of the settlor. The
Courts have also held that the power of testamentary disposition is personal that it cannot be
delegated to another, except for charitable gifts and also in cases of general and special powers
of appointment. Otherwise, a testator cannot leave it to someone else to make a will for him14.
8 (n.a.). (n.d.). Purpose trust. Received on 7th May 2016.
9 Testamentary trusts in their most basic formmerely represent trusts which have been created under the terms of
a person’s lasttestament, that is their Will.Andrew, F. (2004). Testamentary trusts and estate planning. Received
on 7th May 2016.
10 (n.a.). (1992). Non-Charitable purpose trust. Retrieved on 7th May 2016.
11 [1954] SCR 645.
12 Supreme Court of Canada | Brewer v McCauley. Retrieved on 7th May 2016.
13 IkramAbdul Sattar. (2016). Non-Charitable purpose trust. Received on 7th May 2016.
14 Burn, E. H., & Virgo, G. J. (2004). Trusts and trustees cases and materials (6th Ed.). United States: Oxford
University Press.Pg 332.

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To understand further about rule of non-delegation of power, we may refer to the High
Court decision in Tatham v Huxtable15, where the Court held that it is a cardinal rule that a man
may not delegate his testamentary power to another. It is to him that the law gives the right to
dispose of his estate in favour of ascertained or ascertainable persons. A settlor does not exercise
that right if in effect he empowers executors to say what persons or objects are to be his
beneficiaries. This is however, on the other hand, is not the case for charitable trust. We can also
see this rule of non-delegation of testamentary power in the case of Chichester Diocesan Fund v
Simpson16. Based on this case, Lord Simonds opined that it is necessary in all cases other than
charity cases, that the persons to benefit under the will shall be, by the will itself, ascertained or
made ascertainable. They may be made ascertainable by making reference to a specified future
event, including an act to be done by another person, provided that that act does not amount to
the making by one man of another man’s will17. In another words, the Judge simply agreed with
the rule of non-delegation power that the power given to a trustee shall not be delegated to
another, and also shall be ascertained by the testator himself to make non-charitable purpose trust
as a valid trust.
To make it clearer about the rule of non-delegation of power in respect of non-charitable
purpose trust, we can also make a reference to the case of Leahy v Attorney-General for New
South Wales18. In this case, delegation is not permitted but sometimes it is suggested that the
testator who was creating a trust for non-charitable purpose trust is considered as fail to exercise
his testamentary power when he leaves it to the trustee to decide whether or not the rights will be
so used. Greater difficulty will arise whereby the permissible objects of choice are to be
described in a composite expression which does not very clearly indicate a charitable intention
on the part of the testator19.
Therefore, it can be concluded that there shall be no excessive delegation of power
permitted to the trustee in enforcing non-charitable purpose trust, or else it would be a void trust.
15 (1950) 81 CLR 39
16 (1944) AC
17 Andrew, F. (2004). Testamentary trusts and estate planning. Retrieved on 7th May 2016.
18 [1959] HCA 20
19 (n.a.). (n.d). Purpose trusts II : Private purposes. Retrieved on 7th May 2016.

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3.4 Rules Against Perpetuity
The last requirement that is needed in order to valid the non-charitable purpose trust is
the trust must be within the perpetuity period. Rule against perpetuity is a rule under the
Common Law that prevents the transfer of the property for more than 21 years. The rule against
perpetuities also can be known as rules against remoteness of vesting.20
The rule dates from 1682 and was develop from time to time in order to avoid the
situation when it was thought to be a bad thing for the dead to control the living too much and for
property to be stopped from being able to move around the economy. Over time a lot of
problems emerged with the rule. This was mainly because of two things. First, the common law
rule was driven what might happen. This meant that in many cases some extremely unlikely
possibilities shot down property interests. Secondly, was with the consequences of breaching the
rule. The property interest was invalid from the beginning. It couldn't be saved either by the
interest actually vesting in time or by the courts cutting down the terms of the interest so it
complied with the rule. These show that the rule didn't reflect real world events.
Therefore, the perpetuity rule was modified under the Perpetuities Act 1964. The rule for
trust before 11 November 1964 was an interest is void under the common law rule depends on
possible not actual events. Common law rule says that an interest in property is void from the
outset if there is any possibility it might vest21 after the perpetuity period. The perpetuity period
is a lifetime + 21 years.22 However, the rule for trust after 11 November 1964 was using a "wait
and see" approach. Whether an interest is void depends on actual not possible events. The new
common law rule says that an interest in property is void from the time it becomes certain, it
cannot vest within the perpetuity period. The perpetuity period is a lifetime23 + 21 years, or,
where selected, a fixed period of up to 80 years.
However that rule is no longer applicable now. The reference regarding the perpetuities
rule can be made through English Perpetuities and Accumulations Act 2009 since the Act has
20 Jeff Kenny, Partner, “The Rules Against Perpetuities”, Wynn Williams Lawyers (May 2010): p1.
21 Vest here means "vested in interest" not "vested in possession".So an interest is vested when a specified person is
certain to get it even though they might not be able to enjoy it yet (for example where a life tenant could use the
property in the meantime).
22 Jeff Kenny, Partner, “The Rules Against Perpetuities”, Wynn Williams Lawyers (May 2010): p2.
23 Which lifetime includes, where applicable, a gestation period.

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made substantial alterations to the law of perpetuities and excessive accumulations. For example,
an accumulation period in a private trust may extend for the whole of the perpetuity period and is
not limited to 21 years.
The case of Duke Norfolk24 gives an important legal judgment of the House of Lords
which established the common law Rules against perpetuities. In this case Henry, 22nd Earl of
Arundel, tried to create a shifting executory limitation so that one of his titles would pass to his
eldest son, and then to his second son, and another title would pass to his third son, and then to
his fourth son. The estate plan also included provisions for shifting the titles many generations
later if certain conditions should occur. When his second son, succeeded to one title, he did not
want to pass the other to his younger brother, Charles. Charles sued to enforce his interest, and
the court held that such a shifting condition could not exist indefinitely. The judges believed that
tying up property too long beyond the lives of people living at the time was wrong, although the
exact period was not determined for another 150 years.25
Another example of case regarding perpetuity for non-charitable purpose trust is, Re
Dean.26 In this case, a testator charged his freehold estates with payment of £750 per annum to
his trustees for a period of 50 years if any of his horses and hounds should so long live, and
declared that the trustees should apply the money in the maintenance of his horses and hounds
without imposing upon them an obligation to render any account. It was argued that the 50 years
contravene the perpetuity period. The court held, this was a valid non-charitable trust, although
there was no one could enforce it. The trustees were clearly at liberty to carry out the terms of the
gift, although the beneficiaries, being dumb, could not compel them to do so. As the perpetuity
claim, the court ruled that the lifespan of horses and hounds fall below the 21 year period.
Therefore, from the above explanation and example from the cases, it shows that the rule
of perpetuity is very important to validate the non-charitable purpose trust. This is to ensure that
the court would be able to control and enforce the trust within the perpetuity period.
24 Howard v Duke of Norfolk 22 ER 931. Up until this case there was a fairly ad hoc set of rules aimed at perpetuity
issues but they didn't have a unifying principle behind them.
25 Cadell v. Palmer 1 Cl. & Fin. 372, 6 Eng. Rep. 936 (H.L. 1832, 1833).
26 (1889) 41 ChD 552

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4.0 ANALYSIS OF LAW
4.1 General rule of non-charitable purpose trust (NCPT)
Trust can be categorized into two which are express trust and non-express trust. Non-
charitable purpose trust is an express trust. The general principle for a purpose trust is invalid
except for charitable purpose trust (CPT). The problem with CPT is that, it does not have a
human beneficiary which is one of three certainties to constitute a valid trust as referred to the
case of Knight v. Knight. But, the court still regards it as a valid trust but it has to be made for
public purpose and not private purpose
However, the general rule for a non-charitable purpose trust (NCPT) is not valid as
referring to the ‘beneficiary principle’. This requires that there must be some person in whose
favour the court is able to exercise the trust. The absence will therefore make the trust invalid or
void. Nonetheless, the exception for this rule can be found in Re Denley subjected to R v.
District. The exceptional situations recognised will be upheld as in Re Astor, whereby Roxburgh
J described them as ‘anomalous cases and exceptional, concessions to human weaknesses or
sentiment and are not to be extended. Three exceptional cases are for trust of event involving
Chinese ancestral worship, grave or monument, and particular animal.
The conflict on determining the validity of NCPT is on the other hand being illustrated in
Morice case whereby it listed four requirements; enforceability, uncertainty, excessive delegation
of testamentary power and perpetuity.
4.2 The gist of Morice v Bishop of Durham (1804) 9 Ves. Jr. 399)
For the purpose of this paper, the importance of this case is in regards to the requirements
to be challenged by court before a trust can be declared as a charitable purpose trust. According
to the statement made by Sir William Grant M.R. in this Morice case, he said “to be valid, a trust
must be one which a court can control and enforce”. For this reason, in order to determine as to
what extend is the control and enforcement in question would be before a court will satisfy a
trust as a charitable trust, four requirements is derived from Morice case. They are on the
enforceability, uncertainty, excessive delegation of testamentary power and perpetuity.

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The gist of the original case of Morice shows that the court faced difficulty in interpreting
the terms used by the testator in the will. Two main issues are highlighted in this case. Firstly is
on the term ‘benevolence and liberality’ that is used in this case, whether or not it can be taken to
means charity. Secondly is whether the Bishop therefore be considered as the trustee for charity?
The trust is expressed in vague and indefinite terms, as it is arguable that only the term
‘benevolence’ may be related to means charity but not the term ‘liberality’. The term liberality is
too wide and thus reflects on a vague intention of the testator upon the trust. So, the question
shall arise here is that why the court really put emphasize on the testator’s intention? Referring
back to the basic concept in order to constitute a trust as a charitable one, the element of charity
must exist as the real objective of a testator in making the will. Only then, it is clear for the court
to make further judgment on the charitable purpose trust case.
Therefore, in this case the court found that there was no specific purpose stated to be
applied for the trust on the residue, and the word use in the will is not synonymous to the word
charity or charitable. It was held that the residue therefore cannot be said to be of charitable
purposes. As the trust is too indefinite to be disposed of to any other purpose, the residue that
remains undisposed of must be distributed among the next of kin of the testatrix.
4.3 Legal opinion
Based on the court held mentioned beforehand, it is crystal clear that the court really
thoughtful in considering a case on trust. We totally agree with the court’s approach to find a
definite answer on the issue of whether a trust can be classified as a charitable purpose trust or
not. This is due to the fact that a trust is delicate matter as any mislead decision of the court will
result to miscarriage of justice. This can be seen as in Attorney General v. Whorwood, where it
was held that if in a will, a part of it is charitable in purpose while the intention of another part of
it cannot be define, the whole must fail. Hence, clear charitable intent is to be met before a trust
is considered as a charitable trust.
Next is on the four requirements provided in Morice case; enforceability, uncertainty,
excessive delegation of testamentary power and perpetuity. As far as the charitable purpose trust

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is concerned, the first point of enforceability relates with “beneficiary principle”. Under
charitable trusts, the Attorney General is in charged with the duty as the enforcer. However in
non-charitable trusts there is no one who can enforce the trust due to the absence of human
beneficiary to enforce the trust. Hence, we strongly agree that the reason for requirement of
human beneficiary is rooted in the ability of the court to control the trust.
The second requirement is uncertainty. We believe that this certainty element will relate
back with the real intention of testator in making the trust. Taking Morice case as example, wide
meaning of term in the trust will cause difficulty for the court to interpret the case. Hence, the
weightage for a particular trust to classify as a charitable trust is slightly low. For this reason, a
test is appropriate to be done to ensure that the trust is solely for charitable purposes. Also, the
nature of the non-charitable purpose trust that allows trust without certainty of the object to be
valid would result to abuse or manipulation of real intention of construing the non-charitable
purpose trust.
Besides, in order for a non-charitable purpose trust to become valid, there shall be no
excessive delegation of testamentary power. We agree that trustees may not delegate the tasks
that they are required to perform under the trust. This is because a trust is a huge responsibility
and to sustain trust from other person is an obligation that should be performed with good faith
or bona fide. Lastly, a trust must be within the perpetuity period for it to be a valid charitable
trust. Rule against perpetuity is a rule under the Common Law that prevents the transfer of the
property for more than 21 years.
All in all, from deep understanding of the Morice case, we observe that it is not easy for
us to convince the court to validate a non-charitable trust. Since there is no statutory definition of
charity, courts used the Preamble to the Statute of Charitable Uses 1601 (the Statute of
Elizabeth) as guidance as to what purposes are charitable. Also, as much as the court wanted to
honour the charitable intention of the testator, it still has to abide by the requirements laid out in
Morice case to ensure the validity of the purpose trust.

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5.0 CONCLUSION
In conclusion, based on all of the elaborations and analysis that have been derived from
the quote that originally from the case of Morice v Bishop of Durham27, it can be seen that for a
non-charitable purpose trust to be valid, it must fulfil all the four basic requirement of
enforceability, uncertainty, excessive delegation of testamentary power and perpetuity that must
be follow strictly so that the trust still managed to be save by the court. It is also notable that the
very fundamental element of human beneficiaries clearly denotes that the rationale for the trust
to be held by the court.
As far as the discussion concern, it may be visibly to be seen that many of the cases that
had been cited as supporting the invalidity of the purpose and private trusts were in fact based on
uncertainty, perpetuity, or some other deficiency. It is undeniably that even the dictum of the
judge in this Morice’s case was evidently proven that the trust had failed for uncertainty which
the most arguable matter that whether the means of charity may be proved on the term of
‘benevolence and liberality’. And secondly, whether the Bishop therefore considered as the
trustee for charity? The undoubted answer for this two question noticeably proven that the role of
the trustees is vital and accountable not exactly for the benefit of the beneficiaries but to the
court.
Nonetheless, the rule against non-charitable purpose trusts has become subsequently
well-established by the previous court view and judgement in very comprehensive manner so
that the private trust still manage to be saved and may be upheld if there is the enforcer that
willing to enforce the will cautiously under the perpetuity rule. It is indisputably not an easy task
to convince the court to validate a non-charitable trust. As there is no exact and precise statutory
definition of charity, courts used the Preamble to the Statute of Charitable Uses 1601 (the Statute
of Elizabeth) as guidance as to what purposes are charitable. Also, significantly can be spotted
that the court wanted to honour the charitable intention of the testator as long as the court afford
to, it still has to abide by the requirements laid out in Morice’s case to ensure the validity of the
purpose trust.
27 (1804) 9 Ves. Jr. 399

17. 17
REFERENCES
Books:
Burn, E. H., & Virgo, G. J. (2004). Trusts and trustees cases and materials (6th Ed.). United
States: Oxford University Press. Pg 332.
Hudson, A. (1999). Principles of equity and trusts (Cavendish principles of law series;
Cavendish principles series). London: Cavendish.
Jonathan, G. M. (2015). Moffat's trusts law. United States: Cambridge University Press.
Martin, J.E. (2012) Modern equity (19th Ed). London: Sweet & Maxwell.
Martin, J. E., & Hanbury, H. G. (2009). Hanbury & martin modern equity (18th Ed.). London:
Sweet & Maxwell.
Mohsin Hingun, & Azlan Ahmad. (2013). Equity and trusts in Malaysia (Second edition.).
Subang Jaya: Sweet & Maxwell Asia.
Penner, J. E. (2008). The law of trusts. New York: Oxford University Press.
Pettit, P. H. (2009). Equity and the law of trusts. (11th Ed.). London: Butterworths.
Journals:
Anthony, R. C. (2010). The rule against perpetuities. Law Reform Commission of Nova Scotia,
1-45.
Jeff Kenny, P. (2010). The rule against perpetuities. Wynn Williams Lawyers, 1-6.

18. 18
Websites:
Andrew, F. (2004). Testamentary trusts and estate planning. Retrieved on May 7, 2016 from
http://www.tved.net.au/index.cfm?SimpleDisplay=PaperDisplay.cfm&PaperDisplay=http
://www.tved.net.au/PublicPapers/April_2004,_Sound_Education_in_Law,_Testamentary
_Trusts_and_Estate_Planning.html
Ikram Abdul Sattar. (2016). Non-Charitable purpose trust. Received on May 7, 2016 from
http://www.slideshare.net/ikramabdulsattar/noncharitable-purpose-trust-short-notes
McMurtrie, R. C. (1892). The rule in Morice v. The Bishop of Durham. Retrieved on May 19,
2016 from http://doi.org/10.2307/3305753
(n.a.). (n.d.). Purpose trust. Retrieved on May 7, 2016 from
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=10&cad=rja&ua
ct=8&ved=0ahUKEwiU8eizlcfMAhWIQpQKHVhwCfgQFghVMAk&url=http%3A%2F
%2Fweb.uvic.ca%2F~lssweb%2Fwp-content%2Foutline_uploads%2F69-
condensed_notes_--_mike_--
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(n.a.). (1992). Non-Charitable purpose trust. Retrieved on May 7, 2016 from
http://www.manitobalawreform.ca/pubs/pdf/archives/77-full_report.pdf
(n.a.). (n.d). Purpose trusts II : Private purposes. Received on May 7, 2016 from
https://quizlet.com/76888960/11-trusts-11-purpose-trusts-ii-private-purposes-flash-cards/
Supreme Court of Canada | Brewer v McCauley. Received on May 7, 2016 from
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7549/index.do

19. 19
Legislation:
Perpetuities Act 1964
English Perpetuities and Accumulations Act 2009
Preamble to the Statute of Charitable Uses 1601 (the Statute of Elizabeth)