Jersey Unreported Judgments

Trust - application for an order in respect of a charitable trust

[2023]JRC036

Royal Court

(Samedi)

6 March 2023

Before     :

Sir Michael Birt, Commissioner, and Jurats Christensen MBE and Le Cornu

 

IN THE MATTER OF THE WILL TRUST OF KAREL HAJSKY (DECEASED)

Advocate M. Davies for the Representor.

judgment

the COMMISSIONER:

1.        This is an application by Equiom Trust (CI) Limited ("the Trustee") for an order under Article 47A of the Trusts (Jersey) Law 1984 ("the Law") in respect of a charitable trust ("the Trust") established under the Will of Karel Hajsky ("the Testator"). 

2.        At the conclusion of the hearing, the Court granted the relief sought and we now set out our reasons for that decision.

Background

3.        The Testator died on 4 May 1960.  Probate of his last Will with one Codicil was granted to the Trustee (under its then name of Lloyds Bank Executor and Trustee Company (Channel Islands) Limited) as executor and trustee.  In the events which have happened, the Testator's residuary estate was left to his widow for her life and thereafter upon the terms of the Trust.

4.        The provisions concerning the Trust were slightly unusual in that certain functions ("the Functions") were to be undertaken by the late Advocate Giffard (or his successor).  I shall for convenience refer to him as 'the Administrator' although this expression does not appear in the Will.  The Trustee (described in the Will as 'the Bank') was directed to hold the residue, following the death of the Testator's wife, upon trust:

"...to pay the income (or even in such cases as the Bank in its absolute and unfettered discretion on being requested may think fit and proper the capital of such investment) to the said Peter Hawksford Giffard... to be paid or applied by the said Peter Hawksford Giffard or his successor or successors as aforesaid for the maintenance, education and setting up in a business or profession of such poor illegitimate children born and residing in the Island as the said Peter Hawksford Giffard or his successors as aforesaid may select, but so that no child shall be less than six nor more than twelve years of age when selected as a beneficiary under the Trust but so that all benefits under the present Trust shall cease to be payable to such child when the same shall attain its twenty-first birthday with power to the said Peter Hawksford Giffard or his successors at their discretion to extend such age limit of twenty-one years in exceptional cases, and so that no such child shall be educated and set up with a view to becoming either an actor, musician, painter, sketcher or cartoonist."

5.        That wording was contained in the Will.  Under the terms of the Codicil the beneficial class was enlarged to include all poor children (not just poor illegitimate children) born and residing in Jersey, but with an expressed wish that preference be given to such poor children as are illegitimate. 

6.        The Functions conferred upon the Administrator were described in the Will in the following terms:

"I declare that Peter Hawksford Giffard, Advocate, of Le Masurier Giffard and Poch, and his successors as hereinafter provided shall: (1) select the poor illegitimate child or children who are the beneficiaries of the Trust hereinafter declared; (2) select a person or persons to care for and maintain such child or children; (3) supervise the conduct of the child or children and of the person or persons so selected; (4) advertise or make enquiries for the purposes aforesaid; and (5) generally do all such things (other than matters of a financial character the performance of which shall be the sole responsibility of the Bank) as may be necessary and expedient to give effect to the Trusts hereinafter declared in favour of poor illegitimate children."

7.        On 17 May 2005, Advocate Giffard appointed Advocate Clapham as his successor as Administrator.

The present position

8.        The Testator's widow died on 25 September 2020 and accordingly the Trust came into effect at that time. 

9.        The Trust consists of investments and cash totalling approximately £170,000, with an income of £2,000-£3,000 per annum. 

10.      The Trustee and Advocate Clapham consider that the Trust is impracticable to implement.  In the first place, the modest size of the Trust means that it is unlikely to be sufficient to meet its objectives.  The Trust envisages that any child selected for support will be between the age of 6 and 12 and will be supported until the age of 21.  On that basis the Trust would fund a child for between 9 and 15 years.  With an income of only £2,000-£3,000 per annum, recourse would almost certainly have to be had to the capital, which would in turn lead to the rapid depletion of the capital of the Trust. 

11.      Secondly, the Functions required to be undertaken by the Administrator include identifying the child or children to be supported by the Trust, as well as supervising the conduct of such children and their carers.  Since the death of the Testator in 1960, much has changed in relation to how children in need are identified, provided for and cared for in society.  It is unlikely that the Trustee and Advocate Clapham would have access to the sort of information which they would need in order to discharge the Functions. 

The proposal

12.      In view of their conclusions that it is impracticable for the Trust to achieve its objects, the Trustee and Advocate Clapham consider that the assets of the Trust should be distributed to a charity with objects which align with the spirit and intent of the Testator's gift.  They have identified Brightly (Brig-y-Don Children's Convalescent and Holiday Home), which is a registered charity.  They consider that Brightly has objects which closely mirror those of the Trust in that Brightly undertakes work with young people who are in need.

13.      For example, Brightly:

(i)        awards grants to children and young people from birth to 25 years old who are in the care of the States, are care experienced or are suffering from adversity and are in need;

(ii)       offers wide-ranging support to those eligible, including:

(a)       financial or material help with:

(1)       independence (e.g. driving lessons, household items);

(2)       wellbeing (e.g. doctor, dentist, optician appointments);

(3)       Education / further education or employment and equipment required for any of these;

(b)       graduation grants; and

(c)       independent moving on grants (for care leavers up to the age of 25).

14.      Whilst any distribution to Brightly would probably not be used to fund one child for the period and in the way that the Trust envisages, the funds would form part of a larger pool of assets used to support children during their childhood and into adulthood.

15.      Advocate Clapham has been convened to this hearing.  He has confirmed that he is in agreement with the application.  The Representation and supporting affidavit have also been sent to the Attorney General, who has confirmed that he too supports the relief sought in the application.

The Law

16.      Article 47A of the Law provides (so far as material) as follows:

"(1)     Where trust property is held for a charitable or non-charitable purpose and any of the circumstances mentioned in paragraph (2) apply, the court may, on the application of a trustee or the Attorney General, declare that the property or the remainder of the property, as the case may be, shall be held for such other charitable or non-charitable purpose, as the case may be, as the court considers to be consistent with the original intention of the settlor.

(2)     The circumstances are that -

(a)     the purpose has, as far as is reasonably possible, been fulfilled, has ceased to exist or is no longer applicable;

(b)     the purpose cannot be carried out having regard to the directions given by the settlor or the spirit of the gift;

(c)     the purpose provides a use for only part of the trust property;

(d)     the property, and any other property applicable for a similar purpose, can more effectively be applied to a common purpose, regard being had to the spirit of the gift;

(e)     the purpose was laid down by reference to an area that is no longer a unit for that purpose, or by reference to a class of persons or to an area that is no longer appropriate, regard being had to the spirit of the gift or the practicality of administering the gift;

(f)      the purpose has been adequately provided for by other means;

(g)     in the case of a trust for charitable purposes, the purpose has ceased for what ever reason to be charitable; or

(h)     the purpose has ceased in any other way to provide a suitable and effective method of using the property, regard being had to the spirit of the gift."

Decision

17.      The Court is satisfied that the present application falls within (b), (d) and (h) of Article 47A(2).  We are satisfied that the continued existence of the Trust as a separate charitable trust is impracticable and will not fulfil the Testator's objectives.  There are simply insufficient funds in the Trust to achieve what was intended and the specified role of the Administrator is no longer a practical or effective way of providing relief to the intended beneficiaries of the Testator's bounty.

18.      We are also satisfied that Brightly is a charity with broadly similar objectives and that it will be able to use the assets of the Trust in a manner broadly consistent with the Testator's intentions. 

19.      Accordingly, we approve the application and order that the Trustee should, after reimbursement of its costs and those of Advocate Clapham in connection with this application, pay the assets of the Trust to Brightly.

Authorities

Trusts (Jersey) Law 1984.