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2010
Religion is construed widely by the courts and religion and has been defined in law as (Church of the New Faith v Commissioner of Payroll Tax (Vic) (1983) 154 CLR 120 at 136): ...the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion. Those criteria may vary in their CORE Metadata, citation and similar papers at core.ac.uk
Victoria University of Wellington Law Review
The advancement of religion is a controversial head of charitable trusts: whilst its foundations are based on tenets of intangible belief systems, New Zealand law, alongside other common law jurisdictions, supports the notion that the public benefit requirement of all charitable trusts be presumed in this particular head. Common law also reflects decades of evolution of the interpretation of the advancement of religion, thus not limiting the advancement of religion to only the traditional methods of yesteryear, such as offering church services. Nevertheless, with the recent contentious judgment in the New Zealand case of Liberty Trust v Charities Commission, this article submits that the established doctrines associated with the advancement of religion have been advanced beyond envisioned boundaries. The article supports a more conservative interpretation based on established case law. This would not only continue to support fully the evolution of the advancement of religion, but wo...
St John S Law Review, 2013
See COKE, COMMENTARY uPON LIrrLEToN-Mr. Butler's preface to the 13th edition, p. xxiii (1st Am. ed., 19th Eng. ed. 1853).
Oxford Journal of Legal Studies, 2021
This article closes a gap in the theory of trust law by supplying a normative account of the use of trusts to avoid and subvert legal norms outside trust law. While the use of trusts to subvert other law has been a major function thereof since the Middle Ages, theorists of trust law have largely steered clear of this function. We evaluate the commonly proffered justifications for the use of trusts to subvert the law, finding that such justifications are not plausible in liberal legal systems, so that the subversive use of trusts should be curtailed. Common law legal systems attempt to curtail this use by anti-subversive norms, but these attempts are far from completely successful. To the extent existing anti-subversive norms cannot be perfected so as to prevent the subversive use of trusts, an approach restricting the available types of trusts may be preferable.
2016
Charity Law and Religion Juliet Chevalier-Watts of Charitable Purposes 60 (43 Eliz I, c-4), or otherwise known as the Statute of Elizabeth, and in particular, its preamble. This preamble set out recognised charitable purposes, and although the Statute has long since been repealed, its preamble lives on through the heads of charity that were classified by Lord Macnaghten in the key case of Commissioners for Special Purposes of Income Tax v Pemsel. His Lordship stated that charity 'in its legal sense comprises four principle divisions' , which are recognised as four heads of charity: Trusts for the relief of poverty; trusts for the advancement of religion; trusts for the advancement of education; and trusts for other purposes beneficial to the community, not fall under any of the preceeding heads. 3 This classification of charity law is the foundation of charity law that is recognised in such jurisdictions as Australasia, England and Wales, and Canada (Chevalier-Watts 04, 39) and it is the head of advancement of religion that is the focus of this article. 2. The advancement of religion To assess the contemporary issues associated with charity law, our starting point is the head of charity recognised as the advancement of religion. This head is of particular relevance in today's world because in a number of jurisdictions, the 'law of charities is very much the child of Judeaeo-Christian traditions' (Picarda 00, 3), with its history reflecting changes in the focus on the Church, to the Protestant movement, and then to more liberal influences (Ibid.). The contemporary religious world however is one that is unlikely to have been conceived by those who influenced the principles and traditions of ancient charity law, therefore it is a useful indicator as to the relevance of charity law in modern times. It is also pertinent at this stage to ask why religion is still a fundamental part of charity law, even in the face of increasing numbers of atheists and religious critics worldwide. There is no one reason that can be cited, but some answer may be found in the historical context of religion and charity. The contribution to society by religion, in a variety of guises, for example, in terms of building infrastructure and underpinning civilised values, cannot be underestimated. For instance, many of common law jurisdictions, including England and Wales, Ireland, New Zealand and Canada 'are indebted to the religious organizations that laid much of the foundations for their present health and education systems, and that often provided the staff and resources for their functioning and maintenance' (O'Halloran 0, 30, cited in Chevalier-Watts 04-05, 70). Many of these infrastructures and influences remain today thus making the relevance of religion in contemporary society hard to ignore.
Victoria University of Wellington Law Review
Trusts often have the effect of undermining the social aims of the Property (Relationships) Act 1976. In the absence of legislative action, the courts have been sympathetic to a range of arguments aimed at accessing trust assets that would have been subject to division between the parties but for the trust. None of these judicial responses adequately addresses the current deficiencies of the Property (Relationships) Act or the potential detriment to trusts and their beneficiaries. This paper considers a range of potential reforms and argues that any reform should seek to strike a balance between the social aims of a relationship property regime and the right of owners to structure their property interests as they wish.
An editorial by the publication Trusts and Trustees and a paper by Jersey Finance criticised our paper “Trusts: Weapons of Mass Injustice?”, in particular regarding trust registration requirements and publicity, evidence on the abuse of trusts and whether current laws already address all potential abuses involving trusts. This paper offers a response to these criticisms and adds more examples on the involvement of trusts in grand corruption cases as well as comments about the legitimacy of using trusts to avoid taxes.
Pravovedenie, 2023
Closed legal systems are gone in modern world, "mixed" legal systems have become the norm. That has made so-called "transplants" easier but, contrary to a widely held view, legal institutions cannot be transplanted. English trust rules even less, for they are not a coherent set of rules. The British attempted to legislate on trusts for their colonies, for instance for Ceylon (the present-day Sri Lanka), and were thus obliged to be coherent. That made it necessary to introduce new legal concepts with unforeseeable consequences. A wave of legislation followed the adoption of the convention "On The Law Applicable To Trusts And On Their Recognition" by the 15 th session of the Hague Conference on private international law (1985); it gave birth to the "international model" of trusts that quickly became the favourite setting of the rich and ultra-rich. Jersey in the Channel Islands was the leading jurisdiction, many others followed but it was not until the establishment of the International Finance Centres in the Gulf and later in Kazakhstan where "the laws of England and Wales" are taken as a source of law and local courts are staffed by former English judges or in any event by lawyers brought up in the common law that a proper transplant of the English trust took place. A totally different legal setting witnessed attempts to create imitations that had to run against well-established civil law conceptual attitudes that did not allow the existence of more than one patrimony per person or the segregation of assets within one person's patrimony. In 2022 France decreed that each businessman is automatically the owner of two patrimonies; that open the way to a radical rethinking of civil law notions. Québec and Louisiana are taken as examples of civil law legislation on trusts but Québec has followed its own idea that the assets that form the object of a fiducie belong to nobody, while Louisiana's Trust Code is a deft admixture of civil law and common law elements based on the civilian notion of "fiduciary". Luxembourg, France and other civil law countries are then examined: the focus then is on South Africa and Scotland, two countries which have a common past in a shared period of the European ius commune and a common present in being both orphaned from a cultural lineage that provided answers to current matters by drawing on Roman law. Now they both solve the problem of the patrimony by holding that a trustee has more than one patrimony, his own and then one for each trust of which he is the trustee.
Ecclesiastical Law Journal, 2018
There is no universal definition of religion under English law. Instead, different definitions have been developed by courts and tribunals in relation to different religious rights. Although there have been moves towards the harmonisation of these different definitions, recent decisions have reversed this trend. This article explores for the first time how this has led to a confused and contradictory case law. It begins by surveying how religion has been defined in registration law, charity law, human rights law and discrimination law: the moves towards harmonisation and the counter-tendencies in the recent decisions. It places the recent decisions within their broader legal context and points out a number of contradictions and uncertainties. Arguing that a universal definition of religion under English law is now needed, it synthesises the case laws to identify the elements of a universal definition that already exist. The article examines how these can be refashioned in order to remove inconsistencies that exist in different areas of law. Drawing upon insights from the sociology of religion the article concludes by proposing a new definition.
Third Sector Review, 2002
Chinese customary law continues to play not an insignificant part in the legal system of Hong Kong, which is based on the common law system. While the law of trusts in Hong Kong has been received from English law, trusts and trust like devices are recognised in Chinese customary law. This article examines whether ancestral worship trusts can be regarded as charitable trusts, in the general context of the place of Chinese customary law in Hong Kong.
Tulane Law Review, 1995
the origins of the medieval use in the early church's program of consolidating its patrimony and segregating it from assets held by clerics as their personal property.
Legal Studies, 2009
The enactment of the Charities Act 2006 is widely viewed as one of the most momentous events in the recent history of English charity law, and the impact of the Act on the pre-existing law is still being debated. This paper inquires into the operation of the Act within the religious sphere. It seeks to explore the basis upon which charitable recognition was accorded within this sphere before the Act and to assess how far the law that was previously in force has been preserved, modified or rendered inoperative by the provisions of the Act. Three fundamental dimensions of the legal regime governing religious charities are especially relevant to this inquiry. The first dimension encompasses the elusive quest for the meaning of religion in the charitable sense. The second focuses on the long-standing requirement that religious purposes must be beneficial to the public in order to be charitable. The third is concerned with the human rights implications of conferring or withholding charitable status within the religious domain. Each dimension is examined in turn with a view to providing an insight into the complexities and difficulties inherent in the pre-existing law and the extent to which these have been addressed by the reforms contemplated by the Act.
European Review of Private Law, 2021
In this article, the need for the adoption of trusts into civilian jurisdictions * Assistant professor of civil law, Istanbul Bilgi University Faculty of Law. The final version of this contribution was submitted on
2013
Historically a trust will be denied charitable status if its purposes are political, although this principle is fraught with difficulties because of the complex relationship between politics and charities. New Zealand has traditionally followed the jurisprudence of England and Wales, which determines that political trusts should be interpreted relatively widely so catching a broad section of trusts, thus excluding them from achieving charitable status. Australian jurisprudence however has displayed more reticence in its full acceptance of the political trust doctrine. Instead it has adopted a more narrow interpretation, so trusts that may fall foul of the doctrine in England and Wales and New Zealand, might successfully obtain charitable status in Australia. Then with the decision of the Australian High Court decision of Aid/Watch v Commissioner of Taxation, Australia finally departedfrom the jurisprudence of New Zealand and England and Wales. This article explores the Antipodeanjurisdictions and critically considers Australia's significant jurisprudential shift regarding charitable trusts and political activity and whether New Zealand is on the edge of an equal change to charitable trust law. The purpose of this paper is examine critically the diverging paths of charitable trusts of2 jurisdictions, Australia and New Zealand, that not so long ago, ploughed the same path and examine the law of charitable trusts on the edge of change. I think what I have to do now, prior to reviewing this law on the edge of change, I need to set out what we mean by charity at law. Everyone has heard of charity, and in fact, the vast majority of you will at some point have given to charity, or indeed, some of you may be involved in charity. So there is nothing difficult to understand about the concept of charity per se. What you may not fully be clear on however is what actually amounts to something being charitable at law. Not everything that appears to be philanthropic or generous may be charitable. And some things that may theoretically appear to be charitable at first sight, might actually NOT be charitable at law. And to receive all the benefits of being charitable, then certainly in many jurisdictions, an organisation has to be registered as a charity.
This paper seeks to start a debate on the harms that trusts can inflict on societies (e.g. money laundering, corruption and tax evasion risks, potential to defraud creditors, avoid taxes, etc.), and what can be done about this. The paper takes a global perspective on the risks of secrecy, asset protection and a race to the bottom on trust regulation, and proposes global and local solutions. The paper does not address the purely internal relationships between parties to a trust (such as settlors, trustees and beneficiaries), but focuses on trusts’ impact on wider society.
Asia-Pacific Trusts Law, 2021
Introduction Matters of law and religion (or, at any rate, matters of law, morals and religion) seem to have been climbing up the political agenda at an alarming rate over the past four or five years. What follows is an attempt to look at some of the main issues that have surfaced recently which are likely to have the most direct impact on faith communities as faith communities. But there are other areas – such as changes in tax rates and changes in the planning and listed building regimes – that will have particular effects on faith communities in their capacity as charities.
Trusts and Trustees, 2021
comparative law fiducie trusts industrial entity translation unconscionable vague notions Hague trust convention
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