[My friend John Poyser, of the Winnipeg law firm of Inkster, Christie, Hughes, LLP, and Chair of the National Wills and Trusts Subsection of the Canadian Bar Association, has kindly contibuted this guest post.]
Very little is known about the Reverend John Gwyon, but a great deal is known about his estate plan – one of the most bizarre forays into succession planning known to English legal history.
Reverend Gwyon made his will on May 25, 1912, in the shadow of World War I. His will dedicated the whole of his fortune to the establishment of a foundation. That foundation was to exist for the sole purpose of providing boys who were resident of the Farnham district of England with one new pair of knickers each year. Also known as knickerbockers, knickers were a form of short pants gathered just below the knee that were in popular fashion for boys at the time. To be eligible for a pair of knickers from the foundation a boy had to be between the ages of ten and fifteen. To get a replacement pair, the boy had to turn in the old. Money from the foundation was to be used for “no other purpose whatsoever, whether educational or otherwise.” We can only speculate as to what the Reverend John Gwyon was thinking. We can presume he was a bachelor.
Not being content to leave his curious and questionable legacy unrefined, he then amended his will five times over the ensuing six years.
Fearful that he might not have been specific enough, his first amendment declared that the word knickers meant “ordinary strong and durable knickers such as were worn by boys every day, but no sporting or fancy knickers of any kind such as football knickers, cricket knickers, military knickers, boy scout knickers, etc.”
Worrying that the trustees of the foundation might be diverted from their work by war or other calamity, his second amendment made it clear that “in case of extreme national or local distress, cause, emergency, or other reason whatsoever the foundation should never be diverted by the trustees on the application of any person or public body to the relief or on account of such distress, emergency, cause or reason, but should always be applied as specified for boys only….” It was to be knickers or nothing.
Mindful of the lasting mark he felt he was about to make, his third amendment stipulated that the foundation was never to merge with any other foundation, and that it should forever remain unchanged and dedicated in his name as the “Gwyon’s Foundation for Clothing Boys.”
Making what he would have viewed as an important policy concession, his fourth amendment increased the age limit to eighteen, and declared “that each successful boy of not less than fifteen years and not more than eighteen years of age might, if he desired, choose a pair of trousers instead of kickers.”
Becoming more and more liberal in his largesse, his fifth amendment directed that the benefits of the foundation created under his will “should not only extend to the district under the jurisdiction of the Farnham District Council but should also extend to the points three miles or so outside of the boundary.”
Having perfected his plans he left the will untouched over the ensuing twenty years until his death in 1928.
His will was challenged in court. Two lawyers were dispatched from the Farnham District Council to argue that the will was valid and should stand. Lawyers were also sent by the Public Trustee, the Attorney General, and the Treasury Solicitor to argue the case. A substantial sum of money was in dispute. The five lawyers wrangled in court for three days, and at the end of those three days a Chancery Court judge ruled that the will failed and “Gwyon’s Foundation for Clothing Boys” never got off the drawing board.
THE MORAL OF THE STORY
Hidden and almost totally obscured in the bizarre detail of John Gwyon’s estate plan and the court case that followed is a legal lesson. It illustrates a point in the obscure law of trusts.
A trust can be set up in the common law countries of the world for the benefit of a group of persons, but generally not to further a purpose. There is a small group of exceptions, called permitted “purpose trusts.” Purpose trusts are permitted for the care of pets, for the care of graves and for the furtherance of charity. Thus, the argument over the last will and testament of the Reverend John Gwyon came to this: did the knickers trust serve a charitable end?
What is a charitable end? This was summed up by a decision in the English courts rendered by Lord Macnaghten in 1891. The law recognizes four groups of charitable purposes: the relief of poverty, the advancement of education, the advancement of religion, and miscellaneous activities beneficial to the community. This was the law at the time of the Reverend John Gwyon, and remains the law today.
The lawyers for the Farnham District Council almost succeeded in convincing the presiding judge that Gwyon’s Foundation for Clothing Boys was for the purpose of the relief of poverty. The judge pointed out another clause in the trust, however, one that made it clear that the poorest boys in the district would not qualify for knickers. Whatever Reverend John Gwyon had in mind, it certainly was not the relief of poverty. Having said that, with a few wording changes in the will, the knickerbockers trust might be alive today.
Copyright John Poyser