Charitable trusts and discrimination: Two themes

In this article, I consider two doctrinal themes available to judges in equity who must deal with what I call “discriminatory charitable trusts”. In Part II, I concentrate on the theme of public policy. I review how this theme has been deployed in cases about discriminatory trusts, charitable and “private”, before turning to some theoretical considerations that bear on the proper application of the public policy doctrine. In Part III, I turn to the theme of public benefit. I argue that, although the public benefit test applied in equity when working out whether a trust is for a charitable purpose is scarcely used in responding to discriminatory charitable trusts, it has considerable potential as a tool for judges seeking to respond in nuanced ways to such trusts. In Part IV, I conclude by offering some thoughts as to whether judges should opt for the theme of public policy or the theme of public benefit when deliberating about discriminatory charitable trusts.