Cost and Benefits of Deferred Giving - Assignment Example

1) Does charity remain a valuable legal concept for the UK in 2006 and for the future? I. Introduction The legal concept of charity back over 400 hundred years1 ago starting from the enactment of the Statute of Charitable Uses 1601, otherwise known as the Elizabethan 1 law.2 However, as with most old laws which have outlasted several generations, this law had become moot and academic although the concept of charities remains to be relevant to society. For purposes of understanding the concept of charity better, let us look into how the framers of the Elizabethan law define charity. Charities were not a product of our common law but rather stem from the protection of the law of trusts. The preamble of the Statutes of Charitable Uses 1601 so states, and I quote: “Whereas lands, goods (and) money have been given as by sundry other well-disposed persons, some for the relief of aged and poor persons, some for the maintenance of sick and maimed soldiers and mariners, schools of learning, free schools and scholars in universities, some for repair of bridges, ports, causeways, churches, sea-banks and highways, some for education and preferment of orphans, some for or towards relief or maintenance of houses of correction, some for marriages of poor maids, some for aid and help of young tradesmen, which lands, goods (and) money have not been employed according to the charitable intent of the givers and founders thereof, by reason of frauds, breach of trust and negligence in those that should pay (and) deliver same.” This definition stated in the preamble was interpreted in the case of Commissioners for Special Purposes of the Income Tax v. Pemsel (1891) AC 531, by saying: "Charity in its legal sense comprises four principal divisions: trusts for the relief of poverty, trust for the advancement of education, trusts for the advancement of religion, and trusts for other purposes beneficial to the community, not falling under any of the preceding heads." In this essay, I would like to establish that the concepts of charities is still very much relevant to our present society as the four heads mentioned in the Pemsel case is still very much relevant to the present times. In some countries that adopted the preamble3, they expand the law to include such other groups and entities, which may need the assistance afforded by the Statutes. However, the Statutes of Charitable Uses is self-limiting and there is need to expand the coverage thereof in response to modern times. Thus, the concept of Charities evolved into the new Charities Bill. In order to understand better this evolution of the application of the law, let us look at the four areas covered by the Elizabethan law and see how this concepts have evolved over time4 and how our case law affected the evolution thereof. The Four Areas of Charity under the Statutes of Charitable Uses Relief of Poverty Relief of poverty is one of the noblest tasks of mankind to help each other. Under the Elizabethan law, there were two forms of relief, which was set up, one is the outdoor relief5 and the other is the indoor relief6. In Canada, although they adopted the preamble of the Statutes of Charitable Uses, they have extended the meaning thereof by including a wider scope of the law. In Jones v. Executive Officers of the T. Eaton Co. (1973) Supreme Court Reports 635, the Supreme Court of Canada held as valid a trust set up to assist "any needy or deserving Toronto member of the Eaton Quarter Century Club." This I believe is within the ambit of the spirit of the law of trust. Advancement of Religion In advent of the reformation of the Church of England, it was considered the duty of all Christians to undertake seven7 corporal works of mercy8 thus the advancement of religion became one of the focal points for the Statutes of Charitable Uses in 1601. The definition of advance of religion in the Statutes of Charitable Uses limits itself to the “repair of the churches”. However, this coverage has been expanded to include the other activities of the church in furtherance of their religious exercise. Advancement of Education The concept of advance of education have been a subject of debates and some prejudicial points of view which at times would border on being comical. Take these two cases for example. In the case of Incorporated Council of Law Reporting for England and Wales v. Attorney-General (1972) Ch. 73 that advance of education is part of charitable trust. However, in another case, (Re Pinion (1965) Ch. 85), an English artist, whose paintings and other work of art was described as "atrociously bad", asked to set up a trust in his will to establish a museum of his "art." Unfortunately, the proposed trustee refused to implement the will and the court was asked for direction. Now comes the court with its verdict that such will is not a trust for the advancement of education or the arts. According to the judge of that case, "For myself, a reading of the will leads me rather to the view that the testators object was not to educate anyone, but to perpetuate his own name. I can conceive of no useful object to be served in foisting upon the public this mass of junk. It has neither public utility nor educative value."9 Other Purposes Beneficial to the Community Under this heading, all other activities not falling under the three previously mentioned shall be covered under this area. Although not all items found under this heading may not be found in the preamble of the Statutes of Charitable Uses, such may be argued as within the ambit of the spirit of the law. However, in its previous decisions, our English Courts, have been quite strict in terms of its implementation of the this area of the law specially when it comes to beneficiaries of wills so named under by virtue of its activities as defined in the Statutes of Charitable Uses. In the case of Re Spence (1979) Ch. 483, it declined to grant the execution of the will because one of the beneficiary-charity identified in the will had changed substantially by the time of the settler’s death.10 As oppose to the Canadian case on Blais v. Touchet (1963) Supreme Court Reports 358, where the court granted the execution of the will, which named the bishop as trustee. In the words of Justice Judson who penned the decision thereof, "This branch of the law of charities is suffering from over-technicality. I join with others who have said that they do not wish to add to it. This particular gift to the bishop is charitable by virtue of his office." Thus, arguing within the purview of the four areas covered by the law on charities, its relevance to the modern times is still very much pronounced however needing further enhancement to be responsive of the needs of our modern society. (ii) How far do you think the new Charities Bill/Act will effectively bring the law of charity into the 21st century? As has been mentioned in our previous discussion, the importance of the concept of charities is very much applicable in our modern society. However, the evolution of society and its needs call on for a new definition of the scope of the law which will be more beneficial in our times. Thus, the enactment of the new Charities Bill, which gave modern definition of the concept of charities, is a welcome relief, which will bring the concept of charities into the 21st century. Under the new Charities Bill, the legal definition of charity is updated by providing an updated list of charitable purposes and requiring all charities to show that they benefit the public in some way11. And it will improve the regulatory framework for charities. By simplifying and clarifying the law, the Charities Bill will make it easier for charities to negotiate their way through it - and easier for people to understand, enhancing their confidence in charities as organisations that benefit the public.12 Innovations of the New Charities Bill A. The definition of Charities and charitable purpose The evolution of the law brings forth new relevant provisions of the law, which will answer most of our needs and build trust on the charities as institutions. Under the new Charities Bill, a clear definition of what are charitable institutions and what is the coverage of charitable purpose is established13. In effect, it narrows down our perspectives when it comes to charities but it also provides a good check and balance that will promote more confidence by the public on charitable institutions. Under this law, it will be more difficult for fly-by-night organizations to pose as charitable institutions as they need to prove that what they are doing is for charitable purpose. The burden of proof now lies on the organization to prove that they are operating within the provisions of the new bill in order for them to avail of its protection. B. Permit to conduct Fundraising activities There are some sectors that are oppose to this provision of the law since according to them, this will limit the activities of the organization and may hamper their capacity to raise funds for the benefits of their charities. However, I believe that such provision of the law14 is very apt since it cannot be denied that there are people and organizations that abuse the concept of charities. These “chuggers” often harass people into giving donations15, which are of questionable character and should not be allowed. The need to get a permit first before they can solicit donations in public places or go house to house to solicit is a good idea since it will effective curve the activities of those abusive and unethical persons/organizations. C. Registration of Charities The registration of charities with the Charities Commission16 is a good move since it will effectively regulate the proliferation of bogus organizations that operates under the guise of charity. The registration of charities will also boost the confidence of the people in charitable organizations since they will not know which ones are legitimate. D. Determination of Charitable Purpose Under the new law, it is now under the jurisdiction of the Charity Commission to determine charitable purpose17. It is a good move to leave the determination of what is charitable purpose open, as the giving of a statutory definition of what is charitable will limit the law. The flexibility of the old enabled it to last for 400 hundred years and there is no logical sense in changing such system when it worked perfectly well up to now. Furthermore, it would be more apt to give the Commission the power to determine as there are gray areas which the law could not define at the moment but might need to be defined from time to time in an ever changing societal structures an events. D. Tribunal for Charities The setting up of the Charity Appeal Tribunal18 is very welcome under this law, as it will give organizations and persons a faster and more efficient way of redress of grievances. Before, all complaints regarding charities are lodge in the Higher Court which time consuming and very expensive. This effective curtails justice in the sense that they’re those organizations that rather use their funds for their operations rather than spend the same for lawsuits. A further balance in this aspect of the law is that the decisions of the tribunal is still appealable19 in the higher courts in case the persons/organizations involved are not satisfied with the decisions of the tribunal. Conclusion: The legal concept of charities can never be negated even in our present times. The concept of charities in seated on the principles that those who have more should share their goods to those who have less and a have no means of helping themselves for lack of opportunities, resources, talents and the likes. It is a universal idea, which brings people closer to each other in an act humanity. Although provisions of the law may become outdated with the evolution of society, the framework is still the same. It is therefore upon us to assist the law in its evolution by supporting the updating and upgrading thereof. Bibliography 1. The Charities Bill 2. Statutes of Charitable Uses 1601 3. Rebecca Smithers and John Carvel, Wednesday December 22, 2004. Charities bill gets a warm welcome The Guardian 4. Caritasdata (Editor). Top 300 charities 2006/7 CaritasData Ltd 5. Fink, N.S.; Metzler, H.C.(1982) Cost and Benefits of Deferred Giving 6. http://nli.northampton.ac.uk/mmb/lawacc/jrm/Charities-Fundraising-Charities-Bill.htm 7. http://www.legalday.co.uk/current/charity.htm 8. Charity Law Reform - Frequently Asked Questions January 2005 http://www.ncvo-vol.org.uk/policy/index.asp?id=1359 9. DUHAIMES ELDER LAW, WILLS, TRUSTS & ESTATES CENTRE Charitable Trusts http://www.duhaime.org/Will/ca-trus5.aspx 10. Commissioners for Special Purposes of the Income Tax v. Pemsel (1891) AC 531 11. Incorporated Council of Law Reporting for England and Wales v. Attorney-General (1972) Ch. 73 12. Re Pinion (1965) Ch. 85) 13. Re Spence (1979) Ch. 483 14. Blais v. Touchet (1963) Supreme Court Reports 358 15. The Holy Bible. King James Bible. Mathew 25 16. Marjie Bloy, Ph. D. The 1601 Elizabethan Poor Law available online http://www.victorianweb.org/history/poorlaw/elizpl.html Read More