Non-Charitable Purpose Trust

In Malaysia, there are 3 recognised classes of exceptions

of a purpose trust;
- Monuments and Graves (derived from common law)
- Animals (derived from common law)
- Chinese ancestral worship (recognized based on section
3 of Civil Law Act 1956)

Monuments and Graves:

- Musset v Bingle [1876] WN 170.
In this case, two dispositions in the testators will were
contested.
The first disposition was that 300 was to be used for
the purpose of constructing a memorial.
The second disposition was that 200 should be set
aside for the maintenance of that memorial.
Held : The first disposition was valid because it was a
recognised exception to the non-charitable purpose
trust rule, and the second disposition was void for going
against the rules of perpetuity as no duration of
maintenance was stated.

-Re Hooper [1932] 1 Ch 38

A disposition for the maintenance of tombs and
monuments was held to be valid. The distinction is this
case from earlier Musset v Bingle was that the
disposition stated they should maintain the monuments
as long as they could legally do so, which was held to
be 21 years under the common law.

- Perpetuity Period under Exceptions of a

Purpose Trust:
The approach taken by the court:
1. 21 years for tombs and monuments;
2. 21 years for life of the animals in question or expected
life of the animal in question, being within a 21 year
period.

Chinese Ancestral Worship

Trusts for Chinese ancestral worship ought to be upheld
as valid non-charitable purpose trusts under section 3 of
the Civil Law Act 1956, like the trusts for the upkeep of
monuments, tombs and graves and also animals so long
as they are within the perpetuity period.

-Phan Kin Thin v Phan Kuon Yung [1940] MLJ

44
The testator left certain shares of his estate to his
father's Chin Shong (ancestral worship), the issue was
whether his will valid or not.
Held : A bequest for "Chin Shong" is a good gift provided
that it is so drawn that infringement of the rule against
perpetuities is avoided.

Exceptions:
1. Impracticality of Performance renders trusts for Chinese ancestral worship to be failed.
Example:
- Re Chin Sem Lins Settlement:
Whether the provision as to the remaining 40% of trust property did not fail by
reason of impossibility of performance or failure of object. It was stated in the will that
forty (40%) per cent thereof shall be paid to Ken Huin Kongsi in Moyang or Swatow, China
for the maintenance of ancestral graveyard.
Held : In the political situation existing and having regard to the fact that no members of
the settlor's family are residing in China, it is clear and beyond argument that the trust
has failed. No one has been able to advise that the graveyard is being maintained. This
portion thus falls into the residuary estate of the settlor to be distributed in accordance
with the terms of the will.

2. Against perpetuity or as gift for superstitious uses.

Example : Low Cheng Soon & Ors v. Low Chin Piow &
Anor [1932] MLJ 15
The testator directed his trustees "to draw $10,000 from
the common funds (of my estate) and give it to my
eldest son Low Chin Plow for the purchase of a "Hio
Theng" property (a property acquired for the purpose of
using the income derivable from it in defraying the
expenses of ancestral worship) which shall be taken
possession of (absolutely) by him."
Held : It is clear that if the gift is an absolute trust to
purchase property the income of which is to be used for
ancestral worship the gift is void both as a perpetuity or
as a gift for superstitious uses.