Charities Act, 1973

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Number 13 of 1973

CHARITIES ACT, 1973

ARRANGEMENT OF SECTIONS

Number 13 of 1973

CHARITIES ACT, 1973

AN ACT TO AMEND THE LAW RELATING TO CHARITIES BY EXTENDING THE POWERS OF THE COMMIS-SIONERS OF CHARITABLE DONATIONS AND BEQUESTS FOR IRELAND AND BY AMENDING THE CHARITIES ACT, 1961 . [17th July, 1973]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

Interpretation.

1961, No. 17.

1.—(1) In this Act “the Principal Act” means the Charities Act, 1961 .

(2) In the Charities Acts, 1961 and 1973, unless it is otherwise indicated—

(a) a reference to a section is a reference to a section of the Act in which the reference is made,

(b) a reference in a section to a subsection is a reference to a subsection in the section in which the reference is made.

Incorporation schemes for charity trustees.

2.—(1) The Board may, on the application of the trustees of any charity, frame under their seal a scheme establishing, upon such terms and conditions as the Board may specify in the scheme, the trustees as a body corporate and vesting the property of the charity in that body in accordance with section 3.

(2) A scheme under this section may—

(a) contain provisions with respect to the choice of persons for appointment to and the appointment of persons to the body incorporated thereunder and provisions for the management by or on behalf of such body of the trusts which apply to the charity;

(b) contain provisions requiring or entitling any person to produce, execute or hand over any document or to do any other act or thing necessary to secure the vesting of the property belonging to the charity in accordance with the scheme;

(c) contain such transitional, incidental and supplemental provisions as appear to the Board to be necessary for the purposes of the scheme; and

(d) be amended by a subsequent scheme framed by the Board upon an application being made by the body corporate established by the scheme or by any person having an interest.

(3) A body corporate established by a scheme under this section shall have a common seal and power to do any act or thing (including holding land) necessary for the administration of the trusts applying to the relevant charity and may sue or be sued in its corporate name.

Further provisions as to schemes under section 2.

3.—(1) A scheme under section 2 establishing a body corporate shall, without further assurance but subject where necessary to transfer in the books of any bank, corporation or company, and in the case of registered land, compliance with subsection (2), on the trusts which apply to the charity, vest in the body corporate, on and from the date specified therein as that on which the scheme is to come into operation (in this section referred to as the operative date), for all the estate, term or interest for which immediately before the operative date it was held in trust for the charity, the property of the charity together with all rights and liabilities enjoyed or incurred in connection therewith by the person or persons who immediately before the operative date held the property in trust for the charity.

(2) Where any land of which the ownership is registered under the Registration of Title Act, 1964 , becomes vested by a scheme under this section, the registering authority under that Act shall, upon production of a copy under the seal of the Board of the scheme and upon payment of the appropriate fee, register the body corporate established by the scheme in the appropriate register maintained under that Act as owner (within the meaning of that Act) of the land.

(3) Where a scheme is framed under section 2—

(a) all property transferred by the scheme which immediately before the operative date was standing or registered in the books of any bank, corporation or company or was entered in any register kept in pursuance of any enactment shall, on request made by or on behalf of the body corporate established by the scheme, be transferred into the name of that body;

(b) all debts and liabilities duly incurred by the trustees of the charity to which the scheme relates in connection with the property of such charity or the administration of the trusts applying to such charity and which, immediately before the operative date, were owing and unpaid or were so incurred and were undischarged by the trustees shall, on the operative date, become and be the debts and liabilities of the body corporate established by the scheme and shall be paid or discharged by and may be recovered from and enforced against that body accordingly;

(c) all agreements duly made in connection with the property of such charity or the administration of the trusts aforesaid and not fully executed or completed before the operative date shall continue in force and shall be construed and have effect as if the agreements had been made by the body corporate established by the scheme; and

(d) in every action, or other legal proceeding, other than proceedings for an alleged offence or proceedings in relation to an alleged breach of trust, in respect of the property of such charity or arising on or in connection with the administration of the trusts aforesaid which was pending immediately before the operative date and to which the trustees aforesaid are a party, the body corporate established by the scheme shall be substituted as a party in place of such trustees and the proceedings shall continue accordingly.

(4) Every member of a body incorporated by virtue of a scheme under section 2 shall, notwithstanding the incorporation,

(a) be chargeable for property coming into his hands as such a member, and

(b) as regards the charity to which the scheme relates, be accountable and liable for his own acts or omissions and for the due administration of the charity and its property,

in the same manner as if the scheme had not been framed and he had been duly appointed to be a trustee of the charity.

Further powers to frame schemes in relation to charity property.

4.—(1) Where—

(a) on an application made by the trustees of a charity established or regulated by a statute or by a charter, the Board after inquiry into the circumstances are satisfied that it would be for the benefit of the charity to frame in relation thereto a scheme of the kind mentioned in subsection (2), and

(b) by reason of a provision of the statute or charter, the framing of such a scheme would not be within the powers exercisable apart from this section by the Board,

then, notwithstanding the provision the Board may frame the scheme and, subject to subsection (10), the scheme shall have effect in accordance with its terms.

(2) A scheme under this section shall be framed under the seal of the Board and may enable the trustees of a charity—

(a) with the approval of the Board, to sell, lease, exchange, mortgage or charge any land or any other property of the charity, or surrender any lease of such land and to apply or invest any moneys arising therefrom for the benefit of the charity or for such other charitable purpose as the Board shall think proper,

(b) subject to such terms and conditions as the Board may approve, otherwise to raise or borrow money for the benefit of the charity,

(c) in case the charity is for the furtherance of education of persons of a particular sex, to extend, either solely or partly, as may be specified in the scheme, to persons of the other sex the benefit of the charity,

(d) with the approval of the Board, to make and carry into effect an agreement with the trustees of one or more other charities whereby the property of each of the charities would come under common control and be applied or used for the benefit of a common charitable purpose to be specified in the application, provided the foregoing provision shall not be construed as enabling property which is vested in trustees for the benefit of a charity for the furtherance of education to be used for the benefit of a charitable purpose which is not for the furtherance of education,

(e) where a provision of a statute or charter mentioned in subsection (1) requires the trustees of the charity to be members of a particular religious denomination, to appoint such number of persons as may be specified in the scheme, being persons who are not members of that denomination, to be such trustees.

(3) Every mortgage or charge approved by the Board pursuant to a scheme framed under this section shall be effected in such manner as the Board may approve and shall contain such conditions (including conditions relating to the repayment of principal moneys or the redemption and reconveyance of land which is subject to the mortgage or charge) or other provisions, if any, as the Board shall require.

(4) The Board may, on the application of the trustees of the charity to which a scheme framed under this section relates, under their seal amend or revoke the scheme.

(5) Subject to subsection (8), a scheme shall not be framed, amended or revoked until the expiration of one month after public notice of the proposal to do so has been given in such manner as the Board consider most effectual for ensuring publicity thereof and for bringing the proposal to the attention of persons interested.

(6) The notice shall—

(a) contain (so far as conveniently may be) sufficient particulars of the proposed scheme, amendment or revocation, as may be appropriate, and

(b) prescribe a reasonable time within which any objection thereto or suggestion thereon may be made to the Board, and the Board shall consider any objections and suggestions so made to them and may, after consultation with the person or persons making the relevant application under this section, act in reference thereto as they think expedient.

(7) If the Board modify any proposed scheme, amendment or revocation, it shall not be necessary for them to give notice of the modification in accordance with subsections (5) and (6), unless the Board think further notice desirable.

(8) Where the Board propose to amend a scheme framed under this section and the amendment is, in the opinion of the Board, of a formal or minor nature it shall not be necessary for them to give notice of the proposed amendment in accordance with subsections (5) and (6).

(9) A scheme or amendment of a scheme under this section may provide that the scheme or amendment, or any provision contained in the scheme or amendment, shall have retrospective effect (including such effect in relation to a date which is earlier than the date of the passing of this Act).

(10) Nothing in this section shall affect the Educational Endowments (Ireland) Act, 1885 , as amended by section 30 of the Principal Act.

(11) In this section “statute” means—

(a) an Act of the Oireachtas,

(b) an Act of the Oireachtas of Saorstát Éireann,

(c) an Act of the Parliament of the former United Kingdom of Great Britain and Ireland, or

(d) an Act of a Parliament sitting in Ireland at any time before the coming into force of the Union with Ireland Act, 1800.

Transfer of land vested in Board under section 15 of Charitable Donations and Bequests (Ireland) 1844, c. 97.

5.—Where on the application of any person having an interest (in this section referred to as the applicant), after inquiry into the circumstances, it appears to the Board desirable that land vested in the Board pursuant to section 15 of the Charitable Donations and Bequests (Ireland) Act, 1844, and specified in the application should be vested in the applicant, the Board may make an order in relation to the land and the order shall operate, as from such date as may be specified in the order (in this section referred to as the operative date), to vest in the applicant the land for all the estate, term or interest for which immediately before the operative date it was held in trust by the Board, together with all rights and liabilities enjoyed or incurred in connection therewith by the Board immediately before the operative date.

Power of Board to make certain vesting orders in relation to leases pursuant to Leases for Schools (Ireland) Act, 1881, and other leases for charitable purposes.

6.—(1) Where on an application made by a person having an interest in relation to land comprised either in a lease made pursuant to the Leases for Schools (Ireland) Act, 1881, or in any other lease made for a charitable purpose, the Board is satisfied that—

(a) the person entitled to the lessor's interest in such lease is unknown or cannot be found, and

(b) the applicant has taken all reasonable steps to ascertain the identity or whereabouts of such person,

subject to subsection (3), the Board may, if they think fit, make an order under this section.

(2) An order under this section shall be under the seal of the Board and shall vest in the person or persons specified in the order the land comprised in the lease to which the application relates both for such estate or interest and in trust for such charitable purpose as may be so specified, together with, or freed and discharged from, such rights or liabilities connected with the land as may be so specified.

(3) An order under this section shall not be made until the expiration of two months after public notice of the proposal to make it has been given in such manner as the Board consider most effectual for ensuring publicity thereof and for bringing the proposal to the attention of persons interested.

Costs and expenses.

7.—The Board may order the costs and expenses of and incidental to any application, order or scheme made or framed under section 2, 4, 5 or 6 to be paid or raised out of the property of the charity concerned or the income thereof or to be borne and paid in such manner and by such persons as the Board may consider just.

Amendment of section 29 of Principal Act.

8.—Section 29 of the Principal Act is hereby amended by—

(a) the substitution of “twenty-five thousand pounds in value” for “five thousand pounds in value” in subsection (2), and

(b) the substitution of the following subsection for subsection (4):

“(4) Where—

(a) a scheme for the application of a charitable gift has been framed by order of a Court, and

(b) circumstances exist in relation to the scheme, being circumstances whose existence in relation to a charitable gift would enable the property comprised in the gift to be applied cy-près, and

(c) the charitable gift does not exceed twenty-five thousand pounds in value,

the Board, if they think fit, may, for the application cy-près of the property comprised in the charitable gift, by order revoke the scheme and frame, in lieu thereof, a new scheme or revoke the scheme in part or otherwise amend the scheme.”.

Amendment of section 32 of Principal Act.

9.—The Principal Act is hereby amended by the substitution of the following new section for section 32:

“Investment of charity fund.

32.—(1) A Court may invest or order, empower, consent to or approve of the investment of any fund held upon any charitable trust in such manner, on such terms and subject to such conditions, as the Court thinks proper whether or not such investment is authorised by the trust instrument, if any.

(2) The Board may, in their discretion, invest any fund held by them upon any charitable trust in such manner as they think proper, whether or not such investment is authorised by the trust instrument, if any, or by law.

(3) The Board may, if they think fit, on the application of the trustees of any fund held upon any charitable trust, by order confer upon the trustees, either generally or in any particular instance, power to invest the fund in such manner, on such terms and subject to such conditions, as the Board may think proper, whether or not such investment is authorised by the trust instrument, if any, or by law.

(4) Subsection (3) does not apply to a fund to which section 33 for the time being applies.”.

Amendment of section 33 of Principal Act.

10.—The Principal Act is hereby amended by the substitution of the following new section for section 33:

“Leave to invest charity fund held subject to prior limited interest.

33.—Where—

(1) any fund is held upon trust, after the determination of or subject to any prior life interest or other limited interest, for any charitable purposes, and

(2) the trustees give notice to the Board in writing that they desire to invest or vary the investment of the fund,

the following provisions shall have effect—

(a) the Board shall consider the proposal and inform the trustees in writing whether or not they object to the proposal;

(b) if the Board inform the trustees that they object to the proposal, the trustees may apply to the High Court for leave to make or vary the investment and shall give notice of the application to the Board and to such other persons as the Court may direct, and the Court may make such order thereon as the Court thinks fit;

(c) if the Board inform the trustees that they do not object to the proposal, it shall be lawful for the trustees to make or vary the investment in the manner specified in the proposal.”.

Amendment of section 34 of Principal Act.

11.—The Principal Act is hereby amended by the substitution of the following new section for section 34:

“Power of Board to authorise or make sale, exchange, certain other dispositions of, or mortgages of charity land.

34.—(1) Where an application is made to the Board by the trustees of any charity comprising land representing that—

(a) a specified disposition of the land can be effected on terms which would be advantageous to the charity, or

(b) it would be advantageous to the charity to raise a particular sum of money by mortgaging, or charging by way of security for the repayment of the sum to be borrowed, the land or any part thereof for purposes specified in the application,

the Board may, if they think fit, inquire into the circumstances, and if, after inquiry, they are satisfied that the proposed disposition, mortgage or charge would be advantageous to the charity, they may authorise that disposition, mortgage or charge and give such directions in relation thereto (including directions for securing the due investment or application of the money arising therefrom for the benefit of the charity) as they think fit.

(2) Where an application is made to the Board by the trustees of any charity comprising land representing that a specified disposition of the land for the benefit of a specified charitable purpose other than a purpose of the charity of which they are trustees, being a disposition the consideration for which is not the market value, would, if effected, operate for the benefit of the public, the Board may, if they think fit, inquire into the circumstances, and if, after inquiry, they are satisfied that the proposed disposition would both be for the benefit of the specified charitable purpose and operate for the benefit of the public, they may authorise that disposition and give such directions in relation thereto (including direction for securing the due investment or application of any money arising therefrom for the benefit of the charity) as they think fit.

(3) If it appears to the Board in respect of any charity comprising land of which they are trustees that it would be advantageous to the charity to—

(a) make any disposition of the land, or

(b) raise money by mortgaging, or charging by way of security for the repayment of the sum to be borrowed, all or any part of the land of the charity,

they may make that disposition of the land or so raise the money, and the money arising therefrom shall be invested or applied by them for the benefit of the charity in such manner as they think fit.

(4) Every mortgage or charge authorised under subsection (1) shall be effected in such manner as the Board may approve and shall contain such conditions (including conditions' relating to the repayment of principal moneys, or the redemption and reconveyance of land which is subject to the mortgage or charge) or other provisions, if any, as the Board shall require.

(5) The Board may, if they think proper, authorise under this section, with retrospective effect, a specific disposition, mortgage or charge, made without such authority.

(6) In this section “disposition”, in relation to land means a disposition of the land by—

(a) selling it, or

(b) exchanging it for other land, or

(c) surrendering a lease or other contract of tenancy of it, or

(d) accepting a surrender of a lease or other contract of tenancy of it.”.

Amendment of section 35 of Principal Act.

12.—The following subsection is hereby substituted for subsection (1) of section 35 of the Principal Act:

“(1) Where—

(a) any land is subject to a periodical payment payable to or for the benefit of a charity or applicable to charitable purposes, and

(b) an application is made to the Board by—

(i) the trustees of the charity representing that a sale of the periodical payment to the owner of the land would be advantageous to the charity, or

(ii) the owner of the land or other person having an interest requesting the Board to authorise a redemption by him of the periodical payment,

the Board may, if they think fit, inquire into the circumstances, and if, after inquiry, they are satisfied that the proposed sale or redemption can be effected on terms which would be advantageous to the charity, they may authorise the trustees to sell the periodical payment to the owner of the land on such terms and conditions as they deem beneficial to the charity and give such directions for securing the due investment of the money arising from such sale for the benefit of the charity or for securing the due application thereof to such charitable purposes as they think fit. In case the redemption of a periodical payment is authorised under this section by the Board the trustees concerned shall, without unreasonable delay, take all necessary steps to effect the redemption. In case there are no trustees of the charity concerned or the trustees of such charity are unknown, the Board may, on receipt of such payment as they consider appropriate in the circumstances, by order free and discharge the land from the periodical payment.”.

Amendment of section 37 of Principal Act.

13.—The Principal Act is hereby amended by the substitution of the following new section for section 37:

“Power of Board or trustees of charity, with authority of Board, to let land, etc., to do repairs, etc., and raise money for those purposes.

37.—(1) In this section ‘act to which this section applies’ means, in relation to a charity comprising land, any of the following—

(a) the letting of the land (including letting on leases for working any mine),

(b) the digging or raising of stone, clay, gravel or other minerals on the land,

(c) the cutting of timber on the land,

(d) the forming or laying out of any new road or street through the land,

(e) the making of drains or sewers through the land,

(f) the erection of any new building on the land,

(g) the repair, alteration, rebuilding or total removal of any existing building on the land,

(h) the making of any other improvements or alterations in the state or condition of the land.

(2) If it appears to the trustees of any charity comprising land that the doing of any act to which this section applies would be for the benefit of the charity, they may lay before the Board a statement and proposal in relation to the doing of that act, and thereupon—

(a) the Board, if they think that the doing of the act to which the statement and proposal relate (with or without modifications or alterations) would be beneficial to the charity, may make such order for or in relation to the doing of the act and any circumstances connected therewith, as they think fit, though the act is not authorised or permitted by the trust;

(b) the Board may by that order authorise the application of any moneys belonging to the charity for the act.

(3) If it appears to the Board in respect of any charity comprising land of which they are trustees that the doing of any act to which this section applies would be for the benefit of the charity, they may do that act.

(4) The Board may, if they think proper, authorise, with retrospective effect, any act to which this section applies done without such authority.”.

Amendment of section 43 of Principal Act.

14.—The Principal Act is hereby amended by the substitution of the following new section for section 43:

“Power of Board to appoint new trustees of charity.

43.—(1) Where for any reason the appointment of a new trustee or new trustees of any charity appears to the Board to be necessary, the Board—

(a) on the application of the trustee or trustees of the charity, or

(b) if there are no trustees of the charity, or they cannot be found, on the application of any person having an interest, or

(c) in any case, of their own motion,

may make—

(i) an order under the seal of the Board appointing a new trustee or new trustees of the charity either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee, and

(ii) an order under the seal of the Board which shall operate to vest, but subject where necessary to transfer in the books of any bank, corporation or company, the property of the charity in the persons who on the appointment are the trustees, and in so far as the property is comprised of land it shall be so vested for such estate as the Board may direct, and the order shall have the same effect as if the persons who before the appointment were the trustees (if any) had duly executed all proper conveyances of the land for such estate as the Board direct, or if there is no such person, or no such person of full capacity, then as if such person had existed and been of full capacity and had duly executed all proper conveyances of the land for such estate as the Board direct.

(2) Every trustee of a charity appointed under this section shall, as well before as after the property of the charity becomes by law vested in him, have the same powers, authorities and discretions, and may in all respects act as if he had been originally appointed a trustee by the instrument (if any) creating the trust.

(3) The Board may order the costs and expenses of and incidental to any application or order under this section to be paid or raised out of the property of the charity or the income thereof or to be borne and paid in such manner and by such persons as the Board may consider just.

(4) The Board shall—

(a) not less than fourteen days before the date on which they propose to make an order under this section, give public notice of the proposed order, and

(b) within ten days after the date of the making of the order, give public notice of the making, and of the date of the making, of the order, in such manner as the Board consider most effectual for ensuring publicity for the proposal or order, as the case may be, and for bringing it to the attention of persons interested.

(5) (a) Any person having an interest may, within twenty-one days after the day on which public notice of the making of an order under this section is given by the Board, appeal to the High Court against the making of the order. In case the High Court is satisfied, in the circumstances of a particular case, that it is reasonable to do so, it may extend the time for bringing an appeal under this subsection. On any appeal under this subsection the Court may make such order confirming, annulling or varying the order under this section and such order as to costs as it thinks fit, but in case the High Court annuls or varies an order under this section which has become operative, the annulment or variation shall be without prejudice to the validity of anything previously done thereunder.

(b) The Board and the trustees (if any) of the charity shall be entitled to be represented and heard on any appeal under this subsection.

(c) An order under this section shall, if no appeal is brought against it within the period of twenty-one days mentioned in paragraph (a) of this subsection, become operative at the end of that period, and an order against which an appeal is so brought shall become operative—

(i) if and so far as it is confirmed by the Court, from the date of the final determination of the appeal, and

(ii) if the appeal is withdrawn, from the date of the withdrawal.

(6) An order under this section shall not operate further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have operated.

(7) Nothing in this section shall give power to appoint an executor or administrator.

(8) Where a body corporate is appointed by order under this section to be, or a body corporate appointed under this section becomes, sole trustee of a charitable trust the terms of which provide for or require the appointment of more than one trustee, then during such time as the body corporate holds the office of trustee of the trust—

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

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

(9) Where any land of which the ownership is registered under the Registration of Title Act, 1964 , becomes vested, by order under this section, in any person or persons, the registering authority under that Act shall, upon production of a copy under the seal of the Board of the order and upon payment of the appropriate fee, register that person or those persons in the appropriate register maintained under that Act as owner (within the meaning of that Act) of the land.

(10) Where an order is made by the Board under this section, all property transferred by the order which immediately before the date of the order was standing or registered in the books of any bank, corporation or company or was entered in any register kept in pursuance of any enactment shall, upon production of a copy under the seal of the Board of the order, be transferred into the names of the persons appointed trustees by the order.”.

Amendment of section 44 of Principal Act.

15.—Section 44 of the Principal Act is hereby amended by the addition of the following:

“Where the Board orders a bill of costs to be taxed and ascertained under this section, the solicitor concerned shall not be entitled to any costs on account of the business to which the bill of costs relates other than the costs as so taxed and ascertained.”.

Amendment of section 52 of Principal Act.

16.—The Principal Act is hereby amended by the substitution of the following new section for section 52:

“Duty of executors to publish advertisements of charitable devises and bequests if required by Board.

52.—(1) Whenever there is contained in any will a charitable devise or bequest, the Board may, in their discretion, require the person (in this section referred to as the personal representative) to whom probate of the will or administration with the will annexed is granted within six months after the grant of probate or administration or within two months after the date on which the Board makes the requirement, whichever period expires later,

(a) to deliver at the office of the Board, or forward to them by registered post, such evidence as the Board may specify to show that either—

(i) the property comprised in the devise or bequest has been transferred to the charity specified in the will, or

(ii) the trustees of the charity specified in the will are aware of the devise or bequest, or

(b) to publish such particulars of the devise or bequest as the Board may specify and in such manner as the Board may require, and within one month after such particulars are published to deliver at the office of the Board, or forward to them by post such evidence of publication as the Board may require.

(2) If a personal representative fails to comply with a requirement made by the Board under subsection (1), he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding—

(a) in case the requirement is a requirement to deliver at the office of the Board, or forward to them by post, evidence of publication required by the Board, ten pounds, and

(b) in the case of any other requirement so made by the Board, one hundred pounds.

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

(4) 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.”.

Repeal.

17.—Section 20 of the Principal Act is hereby repealed.

Short title, collective citation and construction.

18.—(1) This Act may be cited as the Charities Act, 1973.

(2) The Principal Act and this Act may be cited together as the Charities Acts, 1961 and 1973.

(3) The Principal Act and this Act shall be construed together as one Act.