Unincorporated Associations

• What is an unincorporated association (UA)?

  A non-commercial club or society.
• What legal difficulties arise when an unincorporated association holds property?

  Unincorporated associations have no legal personality and cannot own property.
• What are the three legal difficulties associated with unincorporated associations as mentioned in the text?

  (i) NCPs can be instigated by an UA, (ii) UAs lack separate legal personality, and (iii) the issue of property holding.
• Why are trusts for a purpose generally void?

  Due to object uncertainty, the beneficiary principle, and perpetuity issues.
• Why can't an unincorporated association claim to be a beneficiary?

  Because it has no legal personality and cannot be a legal owner.
• Who is considered the true beneficiary of an unincorporated association?

  The members of the association.
• Why are bequests to unincorporated associations often challenged?

  They are typically contested by the residuary beneficiaries, usually the testator's family.
• What is a key characteristic of unincorporated associations?

  They do not have legal personality and cannot own property.
• What legal contradiction exists regarding donations to unincorporated associations?

  Donations can be made to UAs, but they cannot own property at law.
• How does an unincorporated association accept donations without legal personality?

  This presents a conceptual issue due to their lack of legal personality.
• What happens to the surplus assets of an unincorporated association when it is dissolved?

  This raises another conceptual issue regarding the disposition of surplus assets.
• How does Lawton LJ define unincorporated associations?

  As two or more persons bound together for common purposes, not being business purposes.
• Why can't one have an unincorporated association with oneself?

  Because it requires two or more persons bound together for common purposes.
• What is required for an unincorporated association to have mutual duties and obligations?

  There must be a constitution or contract between the members.
• What must the bond of union between members of an unincorporated association be?

  It must be contractual.
• What are the two types of purposes for unincorporated associations?

  1. Inward-turning: devoted to the benefit of members alone (e.g., a golf club).
  2. Outward-turning: devoted towards some aim (e.g., a political cause).
• What approach does Viscount Simonds take regarding property held by unincorporated associations?

  He takes a restrictive approach.
• What are the two principal methods by which property is held for unincorporated associations?

  1. An outright gift to the present members. 2. A trust for the association’s purposes.
• How have the courts' views on property held by unincorporated associations changed?

  The courts have taken a broader approach than the restrictive view of Viscount Simonds.
• What is required for a charitable trust to leave property to an unincorporated association?

  There must be a recognized charitable purpose and the trust must be for public benefit.
• Why is it often problematic for unincorporated associations to receive donations?

  Because their purposes are often private or non-charitable in nature.
• What was the outcome of the property left to an unincorporated association in Leahy v A-G for NSW?

  The property was held void as it was for the UA's abstract purposes, which weren't charitable.
• What does Re Denley suggest about private purposes benefiting individuals?

  If a private purpose benefits individuals and does not infringe the perpetuity rule, then a trust can be found.
• How can property be treated when transferred to benefit members of an unincorporated association?

  It can be treated as an absolute gift for the members or held beneficially on trust for them.
• How do members hold property in an unincorporated association?

  Members hold the property as joint tenants.
• What is the traditional view of a trust for present and future members?

  It is traditionally regarded as void for infringing the perpetuity rule.
• How does the PAA 2009 affect the validity of trusts for unincorporated associations?

  It allows a trust to remain valid for 125 years under the "wait and see rule".
• How should property be treated according to the constitution of an unincorporated association?

  It should be treated as held on trust by an officer for the members, subject to their contractual rights.
• What does the contract-holding theory (CHT) suggest about gifts to members of an unincorporated association?

  It suggests that gifts can be made to existing members subject to their contractual rights and liabilities.
• How does Lewison J challenge the contract-holding theory?

  He suggests that CHT is a subspecies of joint tenancy or tenancy in common.
• What was the case of Re Recher about?

  It involved a bequest to "The London and Provincial Anti-Vivisection Society" that ceased to exist.
• What does Brightman J state about trusts for non-charitable purposes?

  They are void because there is no beneficiary, but associations can validly pursue lawful non-charitable purposes.
• What are the three potential intentions of the testatrix regarding the gift?

  The testatrix intended either a gift to the members beneficially, a gift to the members on contract terms, or a gift to the society for its purposes.
• Why is a trust for non-charitable purposes considered void?

  It is void because there is no identifiable beneficiary.
• What is the significance of members forming an association or society for non-charitable purposes?

  • Members can validly devote funds to lawful non-charitable purposes.
  • Example: a members’ social club.
  • Members may not only seek personal advantages.
  • Rights and liabilities depend on a contract, usually evidenced by rules.
• What was the case of Re Lipinski about?

  It involved Harry Lipinski bequeathing his residuary estate to trustees for the Hull Judeans Association.
• What was the specific purpose of the bequest made by Harry Lipinski?

  The money was to be used solely for constructing and improving new buildings for the association.
• Under what condition is a gift with a "superadded direction" considered valid?

  The gift is valid if the beneficiaries are ascertainable.
• What did Oliver J suggest regarding the construction of a valid gift to an unincorporated body?

  He suggested that such a gift should not fail if it specifies a purpose within the association's powers.
• What does the case Re Horley Town FC address?

  It addresses how the contract holding theory applies to different classes of members in an unincorporated association.