PART III.

Miscellaneous Provisions in Relation to Charities.

45. —(1) In determining whether or not a gift for the purpose of the advancement of religion is a valid charitable gift it shall be conclusively presumed that the purpose includes and will occasion public benefit.

(2) For the avoidance of the difficulties which arise in giving effect to the intentions of donors of certain gifts for the purpose of the advancement of religion and in order not to frustrate those intentions and notwithstanding that certain gifts for the purpose aforesaid, including gifts for the celebration of Masses, whether in public or in private, are valid charitable gifts, it is hereby enacted that a valid charitable gift for the purpose of the advancement of religion shall have effect and, as respects its having effect, shall be construed in accordance with the laws, canons, ordinances and tenets of the religion concerned.

(3) The foregoing subsections shall not apply in the case of a gift which takes effect before the 1st day of January, 1960.

46. —(1) The High Court or the Board may by order make and bring into effect schemes for the establishment of common investment funds (in this section referred to as schemes) upon terms which provide—

(a) for property transferred to the fund by or on behalf of a charity participating in the scheme to be invested under the control of trustees appointed to manage the fund; and

(b) for the participating charities to be entitled (subject to the provisions of the scheme) to the capital and income of the fund in shares determined by reference to the amount or value of the property transferred to it by or on behalf of each of them and to the value of the fund at the time of the transfers.

(2) The High Court or the Board may make a scheme on the application of any two or more charities: provided that, in the case of any two or more charities of which the Board are trustees, the Board may make a scheme of their own motion.

(3) A scheme may be made in terms admitting any charity to participate, or restricting the right to participate in any manner.

(4) A scheme may make provision for, and for all matters connected with, the establishment, investment, management and winding up of the common investment fund, and may in particular include provision—

(a) for remunerating persons appointed trustees to hold or manage the fund or any part of it, with or without provision authorising a person to receive the remuneration notwithstanding that he is also a charity trustee of or trustee for a participating charity;

(b) for restricting the size of the fund, and for regulating as to time, amount or otherwise the right to transfer property to or withdraw it from the fund, and for enabling sums to be advanced out of the fund by way of loan to a participating charity pending the withdrawal of property from the fund by the charity;

(c) for enabling income to be withheld from distribution with a view to avoiding fluctuations in the amounts distributed, and generally for regulating distributions of income;

(d) for enabling moneys to be borrowed temporarily for the purpose of meeting payments to be made out of the fund;

(e) for enabling questions arising under the scheme as to the right of a charity to participate, or as to the rights of participating charities, or as to any other matter, to be conclusively determined by the decision of the trustees managing the fund or in any other manner;

(f) for regulating the accounts and information to be supplied to participating charities.

(5) A scheme, in addition to the provision for property to be transferred to the fund on the basis that the charity shall be entitled to a share in the capital and income of the fund, may include provision for enabling sums to be deposited by or on behalf of a charity on the basis that (subject to the provisions of the scheme) the charity shall be entitled to repayment of the sums deposited and to interest thereon at a rate determined by or under the scheme; and where a scheme makes any such provision it shall also provide for excluding from the amount of capital and income to be shared between charities participating otherwise than by way of deposit such amounts (not exceeding the amounts properly attributable to the making of deposits) as are from time to time reasonably required in respect of the liabilities of the fund for the repayment of deposits and for the interest on deposits, including amounts required by way of reserve.

(6) Except in so far as a scheme provides to the contrary, the rights under it of a participating charity shall not be capable of being assigned or charged, nor shall any trustee or other person concerned in the management of the common investment fund established by the scheme be required or entitled to take account of any trust or other equity affecting a participating charity or its property or rights.

(7) Property held upon any charitable trust may be transferred to common investment funds established under this section unless the power to do so is excluded by a provision specifically referring to schemes in the terms of the trust.

(8) A common investment fund shall be deemed for all purposes to be a charity.

(9) The High Court may by order amend or vary the terms of, or wind up, a scheme and the Board may by order amend or vary the terms of, or wind up, a scheme made by order of the Board.

47. —(1) Subject to subsection (2), the circumstances in which the original purposes of a charitable gift may be altered to allow the property given or part of it to be applied cy-près shall be as follows:—

(a) where the original purposes, in whole or in part—

(i) have been as far as may be fulfilled; or

(ii) cannot be carried out, or cannot be carried out according to the directions given and to the spirit of the gift; or

(b) where the original purposes provide a use for part only of the property available by virtue of the gift; or

(c) where the property available by virtue of the gift and other property applicable for similar purposes can be more effectively used in conjunction, and to that end can suitably, regard being had to the spirit of the gift, be made applicable to common purposes; or

(d) where the original purposes were laid down by reference to an area which then was but has since ceased to be a unit for some other purpose, or by reference to a class of persons or to an area which has for any reason since ceased, either to be suitable, regard being had to the spirit of the gift, or to be practical in administering the gift; or

(e) where the original purposes, in whole or in part, have, since they were laid down—

(i) been adequately provided for by other means; or

(ii) ceased, as being useless or harmful to the community or for other reasons, to be in law charitable; or

(iii) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the gift, regard being had to the spirit of the gift.

(2) Subsection (1) shall not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy-près, except in so far as those conditions require a failure of the original purposes.

(3) References in the foregoing subsections to the original purposes of a gift shall be construed, where the application of the property given has been altered or regulated by a scheme or otherwise, as referring to the purposes for which the property is for the time being applicable.

(4) It is hereby declared that a trust for charitable purposes places a trustee under a duty, where the case permits and requires the property or some part of it to be applied cy-près, to secure its effective use for charity by taking steps to enable it to be so applied.

(5) This section shall apply to property given for charitable purposes, notwithstanding that it was so given before the commencement of this Act.

48. —(1) Property given for specific charitable or non-charitable purposes which fail shall be applicable cy-près by a Court of competent jurisdiction as if given for charitable purposes generally, where it belongs—

(a) to a donor who, after such advertisements and inquiries as are reasonable, cannot be identified or cannot be found; or

(b) to a donor who has executed a written disclaimer of his right to have the property returned,

but in applying cy-près property given for specific non-charitable purposes regard shall be had to the wishes of the trustees or other persons in charge of the property.

(2) For the purposes of this section property shall be conclusively presumed (without any advertisement or inquiry) to belong to donors who cannot be identified, in so far as it consists—

(a) of the proceeds of cash collections made by means of collecting boxes or by other means not adapted for distinguishing one gift from another; or

(b) of the proceeds of any lottery, competition, entertainment, sale or similar money-raising activity, after allowing for property given to provide prizes or articles for sale or otherwise to enable the activity to be undertaken.

(3) A Court of competent jurisdiction may by order direct that property not falling within subsection (2) shall for the purposes of this section be treated (without any advertisement or inquiry) as belonging to donors who cannot be identified, where it appears to the Court either—

(a) that it would be unreasonable, having regard to the amounts likely to be returned to the donors, to incur expense with a view to returning the property; or

(b) that it would be unreasonable, having regard to the nature, circumstances and amount of the gifts, and to the lapse of time since the gifts were made, for the donors to expect the property to be returned.

(4) Where property is applied cy-près by virtue of this section, the donor shall be deemed to have parted with all his interest at the time when the gift was made; but where property is so applied as belonging to donors who cannot be identified or cannot be found, and is not so applied by virtue of subsection (2) or (3)—

(a) the scheme shall specify the total amount of that property; and

(b) the donor of any part of that amount shall be entitled, if he makes a claim not later than twelve months after the date on which the scheme is made, to recover from the charity for which the property is applied a sum equal to that part, less any expenses properly incurred by the charity trustees after that date in connection with claims relating to his gift; and

(c) the scheme may include directions as to the provision to be made for meeting any such claim.

(5) For the purposes of this section, purposes shall be deemed to fail where any difficulty in applying property to those purposes makes that property, or, in the case of property to be applied for charitable purposes, the part not applicable cy-près under section 47, available to be returned to the donors.

(6) In this section, except in so far as the context otherwise requires, references to a donor include references to persons claiming through or under the original donor, and references to property given include references to the property for the time being representing the property originally given or property derived from it.

(7) (a) The powers conferred by this section on a Court of competent jurisdiction in relation to property given for specific charitable purposes may, where the property does not exceed one thousand pounds in value, be exercised by the Board, and, for the purposes of such exercise, references in the preceding subsections of this section to a Court of competent jurisdiction shall be construed as including references to the Board.

(b) For the purposes of paragraph (a)—

(i) the value of land shall be taken to be fifty times the rateable valuation thereof,

(ii) the value of any periodical payment to which land is subject shall be taken to be fifteen times the annual amount thereof, and

(iii) the value of any other periodical payment shall be taken to be twenty times the annual amount thereof.

(8) This section shall apply to property given for charitable or non-charitable purposes, notwithstanding that it was so given before the commencement of this Act.

49. —(1) Where any of the purposes of a gift includes or could be deemed to include both charitable and non-charitable objects, its terms shall be so construed and given effect to as to exclude the non-charitable objects and the purpose shall, accordingly, be treated as charitable.

(2) Subsection (1) shall not apply where—

(a) the gift takes effect before the 1st day of January, 1960, or

(b) (i) the terms of the gift make, or provide for the making of, an apportionment between the charitable and the non-charitable objects, and

(ii) the non-charitable objects are identifiable from an express or implied description.

(3) This section shall not, by its operation on any gift as respects the period from the 1st day of January, 1960, to the 24th day of September, 1960, entitle any person to reclaim any tax or duty paid or borne during that period, nor (save as respects tax or duty) require the objects declared by the gift to be treated as having been charitable so as to invalidate anything done or any determination given during that period.

50. —(1) Every gift made after the commencement of this Act for the provision, maintenance or improvement of a tomb, vault or grave or of a tombstone or any other memorial to a deceased person or deceased persons which would not otherwise be charitable shall, to the extent provided by this section, be a charitable gift.

(2) Such a gift shall be charitable so far as it does not exceed—

(a) in the case of a gift of income only, sixty pounds a year,

(b) in any other case, one thousand pounds in amount or value.

51. —(1) In every case of a breach or supposed breach of any trust for charitable purposes or whenever the direction or order of the High Court is considered necessary for the administration of any trust for charitable purposes, the Board or, with the consent of the Attorney General, any person may apply to the Court for such relief as the nature of the case may require and the Court may make such order thereon as the Court thinks fit.

(2) Where any of the circumstances specified in subsection (1) of section 47 exist in relation to a charitable gift which is the subject of an application under this section, the Court may, if it thinks fit, on such application, frame a scheme for the application cy-près of the property comprised in the charitable gift.

52. —(1) Whenever there is contained in any will a charitable devise or bequest, the person (in this section referred to as the personal representative) to whom probate of the will or letters of administration with the will annexed is granted shall, subject to any exemption granted by the Board under section 20, do the following things—

(a) within three months after the grant of probate or letters of administration, publish once in Iris Oifigiúil and three times successively in some newspaper circulating in the locality where the devise or bequest or the greater part thereof is directed to be expended or applied, or if there is no direction as to any such locality, then in some morning newspaper published on every week-day in Dublin, the following particulars—

(i) the devise or bequest contained in the will,

(ii) the name of the testator,

(iii) the date of the will,

(iv) the name of the person to whom the devise or bequest is given,

(v) the name of the person appointed by the testator for the management and direction of the devise or bequest; and

(b) within four months after the grant of probate or letters of administration, deliver at the office of the Board or forward to them by post three papers (other than Iris Oifigiúil) containing the successive publications pursuant to paragraph (a).

(2) If a personal representative fails to comply with paragraph (a) of subsection (1), he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding fifty pounds.

(3) If a personal representative fails to comply with paragraph (b) of subsection (1), he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding ten pounds.

(4) An offence under subsection (2) or (3) may be prosecuted by the Board.

(5) The expenses incurred by a personal representative in complying with subsection (1) shall be paid by him out of the estate or funds devised or bequeathed to the charity concerned.

53. —(1) Before any legal proceedings (except legal proceedings instituted with the authority of or by the direction of the Board under section 25 in relation to any charity are commenced by any person except the Attorney General, that person shall transmit to the Board notice in writing of the proposed legal proceedings and such information as may be requisite or proper or may be required from time to time by the Board, for explaining the nature and objects thereof.

(2) Nothing contained in subsection (1) shall make any order in any proceedings in which the Board have not been made parties binding and final as against the Board.

54. —It shall be lawful for trustees or other persons having the custody of any deeds or muniments of or relating to a charity to deposit them for security in a repository which may be provided by the Board, subject to any regulations made by the Board under this Act.

55. —(1) In this section “disposition”, in relation to property means any sale, exchange, partition, mortgage, lease or other disposition of the property.

(2) Where the trustees of a charity have power to determine on a disposition of any property of the charity, a majority of two-thirds of the trustees assembled at a meeting of their body duly constituted shall have legal power, on behalf of themselves and their co-trustees, to do, enter into, and execute all such acts, deeds, contracts and assurances as may be requisite for carrying into legal effect any disposition of the property, and all those acts, deeds, contracts or assurances shall have the same legal effect as if they were respectively done, entered into, or executed by all the acting trustees for the time being.

56. —Where, before the commencement of this Act, a body corporate has been appointed sole trustee of a charitable trust, then, during such time before and after such commencement as the body corporate has held and continues to hold the office of trustee of the trust—

(a) the terms of the trust shall be deemed to have provided for and required and to provide for and require the appointment of one trustee only, and

(b) one trustee only of the trust shall be deemed to have been originally appointed under the terms of the trust.

57. —The following provisions shall apply in relation to a corporation established by Act or charter as the governing body of a charity—

(a) a member of the corporation may resign his membership by giving to the corporation not less than one month's notice in writing of his intention to do so;

(b) the corporation may appoint another person to be a member of the corporation in place of a member so resigning.

58. —The Probate Officer shall, between the 1st day of July and the 1st day of November in every year, make to the Board a return containing—

(a) particulars of every charitable devise or bequest contained in any will entered in the Probate Office or of which a copy has been forwarded to him from the office of any of the district probate registrars in the State or from any other source during the year preceding the said 1st day of July,

(b) the name of the testator,

(c) the name of the person to whom probate of the will or letters of administration with the will annexed was granted,

(d) the date of the will and the date of the probate or letters of administration.

59. —The Board are hereby authorised to pay into their general account out of the accruing income of the Embezzled Charities Recovery Fund, kept by them, the sum of seventeen pounds thirteen shillings and five pence, being the amount of a deficit appearing in their annual accounts since the year 1873.