Re Lipinski’s Will Trusts: ChD 1976

Harry Lipinski bequeathed his residuary estate on trust as to half for the Hull Judeans (Maccabi) Association to be used solely to construct and improve the new buildings for the association. The executors sought a determination whether the bequest was valid.
Held: Whether a gift was treated as a purpose trust or an absolute gift to a unincorporated non-charitable body with a superadded direction, the gift was valid if the beneficiaries were ascertainable; that the specified purpose of the gift to the Hull Judeans was within the power of that association and its members were the ascertained or ascertainable beneficiaries, and were therefore the persons who were entitled to enforce that purpose, or notwithstanding the use of ‘solely’, to vary that purpose. The association was not a charity.
Oliver J: ‘If the gift were to the association simpliciter, it would, I think, clearly fall within the second category of Cross J.’s categories. At first sight, however, there appears to be a difficulty in arguing that the gift is to members of the association subject to their contractual rights inter se when there is a specific direction or limitation sought to be imposed upon those contractual rights as to the manner in which the subject matter of the gift is to be dealt with . . .
There would seem to me to be, as a matter of common sense, a clear distinction between the case where a purpose is prescribed which is clearly intended for the benefit of ascertained or ascertainable beneficiaries, particularly where those beneficiaries have the power to make the capital their own, and the case where no beneficiary at all is intended (for instance, a memorial to a favourite pet) or where the beneficiaries are unascertainable . . If a valid gift may be made to an unincorporated body as a simple accretion to the funds which are the subject matter of the contract which the members have made inter se – and Neville Estates Ltd. v. Madden [1962] Ch. 832 and In re Recher’s Will Trusts [1972] Ch. 526 show that it may – I do not really see why such a gift, which specifies a purpose which is within the powers of the association and of which the members of the association are the beneficiaries, should fail. Why are not the beneficiaries able to enforce the trust or, indeed, in the exercise of their contractual rights, to terminate the trust for their own benefit? Where the donee association is itself the beneficiary of the prescribed purpose, there seems to me to be the strongest argument in common sense for saying that the gift should be construed as an absolute one within the second category – the more so where, if the purpose is carried out, the members can by appropriate action vest the resulting property in themselves, for here the trustees and the beneficiaries are the same persons.
Directly in point is the more recent decision of Goff J. in Re Denley’s Trust Deed [1969] 1 Ch. 373 . . Goff J held that the rule against enforceability of non-charitable ‘purpose or object’ trusts was confined to those which were abstract or impersonal in nature where there was no beneficiary or cestui que trust. A trust which, though expressed as a purpose, was directly or indirectly for the benefit of an individual or individuals was valid provided that those individuals were ascertainable at any one time and the trust was not otherwise void for uncertainty . . . I respectfully adopt this, as it seems to me to accord both with authority and common sense.’ and ‘This is a case in which, under the constitution of the association, the members could, by the appropriate majority, alter their constitution so as to provide, if they wished, for the division of the association’s assets among themselves. This has, I think, a significance.’ Finally: ‘. . . whether one treats the gift as a ‘purpose’ trust or as an absolute gift with a superadded direction . . all roads lead to the same conclusion.’
References: [1976] Ch 235
Judges: Oliver J
This case cites:

  • Cited – Leahy v Attorney-General of New South Wales PC 20-Apr-1959
    leahy_agnswPC1959-4
    A gift to an unincorporated association simpliciter, i.e. where neither the circumstances of the gift nor the directions given nor the object expressed impose on the donee the character of a trustee, is nothing else than a gift to its members at the . .
    ([1959] AC 457, , [1959] UKPC 1, , [1959] UKPC 9)
  • Cited – Neville Estates Ltd v Madden ChD 1962
    A charitable trust was created for the benefit of the members of Catford Synagogue.
    Held: The court considered three categories of valid non-charitable purpose gifts: (1) an absolute gift to members of an association at the date of the gift, . .
    ([1962] Ch 832)

This case is cited by:

  • Cited – Hunt and Another v McLaren and others ChD 4-Oct-2006
    Land had been given to a football club under a trust for its exclusive use as such. That land was sold and a new ground acquired and a stadium built, but the land was subject to restrictive covenenats limiting its use to sports, which considerably . .
    (, [2006] EWHC 2386 (Ch))

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.245267