| Beneficiary principle |
A trust must be for an identifiable beneficiary or a charitable purpose. English and Welsh law distinguishes between 'public and private endowments' (Yahaya, p 169). |
A Waqf can be for one's family, a specific charitable institution, or a charitable purpose. Syariah law does not maintain the same distinction as regards private and public endowments that the English law of trusts does (Yahaya, pp 169–171). '[W]aqf deeds... did not differentiate between public and private charity throughout the colonial period' (Yahaya, p 189). |
| Definition of charity |
Per F W Maitland, Equity: Also the Forms of Action at Common Law (CUP 1909), lecture IV, pp 51–52, doctrinally unclear. Maitland discusses a number of cases: Citing Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531, he notes that the scope of charity 'nearly equals any purpose conceived to be directly beneficial to the public or to some class of the public'. The inquiry appears highly fact-specific. Looking at two more cases Maitland cites: Re Scowcroft [1898] 2 Ch 638 and Re Nottage [1895] 2 Ch 649, we might conclude that whereas 'the furtherance of conservative principles and religious and mental improvement' will often give rise to a valid charitable trust, as in the former case, a fund constituted such that the interest be spent 'in providing a cup to be given for the encouragement of yacht racing' may not be acceptable for the purposes of charity, as in the latter case. There are, further, certainty requirements. Per Re Macduff [1896] 2 Ch 451, it would appear that a declaration for 'philanthropic purposes' may not be the same as one for charitable ones; per Blair v Duncan [1902] AC 37, a gift for charitable or public purposes, to be selected by the trustee, is void for uncertainty; and per Hunter v Attorney-General [1899] AC 309, 323, a charitable trust that is 'mixed up' with other indefinite or non-charitable purposes is void where the court cannot execute them. Hunter also stands for the proposition that a declaration for a purpose that may be broader than mere charity (e.g. for 'public utility'; see also Re Macduff, above) may be void where the trustees have discretion (see also Blair v Duncan, above, and Attorney-General v National Provincial and Union Bank of England [1924] AC 262). |
Much broader conception of charity (Yahaya, pp 170–171). See, for example, Syed Abbas bin Mohamed Alsagoff and Another v Islamic Religious Council of Singapore (Majlis Ugama Islam Singapura) [2009] SGHC 281, [3], where a will was made establishing 'a khairat in my name' involving, firstly, a gift 'to the mosque of my mother... [of] $10 per month to be spen[t] on any useful thing in that mosque'; secondly, an annual remit to mosques in the cities of Mecca, Medina, and Taif 'to be spent on food for those who break their fast in the mosques there or give as charity amongst the poor'; thirdly, a 'remit to Hadramaut $20 per annum to be distributed as charity amongst the poor Sharifahs [female descendants of the Prophet Muhammad]'; and, lastly, with 'the balance thereof my executors shall distribute amongst my poor relatives in Singapore or elsewhere or on other charitable deeds which my executors shall think will be beneficial to me' (see also, Yahaya, p 199). See also Yahaya, p 191 n 81: 'Public waqfs have various uses. They have been used to supply weapons to warriors fighting in God’s service; provide funds for the establishment of mosques, schools and hospitals; and pay the salaries of scholars, religious functionaries and students.' The waqf is viewed as a kind of bequest to Allah, with the management of the asset being delegated to the so-called mutawalli (rather than 'trustee' per se; p 194). |
| Perpetuities |
Barred except for charitable trusts (Yahaya, p 171 n 12; supra Maitland 52). |
Essential to the Waqf (Yahaya, p 171). A non-perpetual Waqf is invalid in Syariah (id, p 172 n 19). |
| 'Legal ownership'/'legal title'/'first order right' |
Trustee (see Alsagoff at [39]. |
Allah is regarded as the true owner of the trust property; in the case of a family Waqf where heirs live on the trust land, the heirs are regarded as usufructuaries (Yahaya, p 171–2). |
| Trust assets |
Generally alienable and to be managed by trustees. Further, the rule in Saunders v Vautier (1841) 4 Beav 115, 49 ER 282; affirmed (1841) Cr & Ph 240, 41 ER 482 holds that (provided the beneficiaries are of age and legally competent) beneficiaries may instruct the trustee to dissolve a trust and distribute all the assets amongst the beneficiaries, even where the trustee is to otherwise act 'for the accomplishment of some purpose' (in Maitland's words; lecture IV, pp 50–51) such as to hold the property, sell it, and thereafter distribute the proceeds amongst the beneficiaries. In contemporary Singapore law, following the Administration of Muslim Law Act, trusts and trustees are distinct from waqfs and mutawallis (Alsagoff at [40]–[41]). |
Being owned by Allah, inalienable and immune from all third-party claims (Yahaya, p 171). Hence, the two forms of actions brought in colonial courts comprised, for the most part, non-beneficiaries who wanted to be included within the class, and beneficiaries who wanted to dissolve the waqf altogether (Yahaya, pp 172–173). As the Saunders rule does not apply, the major route by which beneficiaries sought to procure the trust assets immediately was by 'questioning trustees’ competence and good faith or disputing their fellow beneficiaries’ shares in the settlement' in order to argue that the waqf had failed (Yahaya, p 173). Another means of invalidating a waqf was by arguing that its 'list of clauses deemed charitable according to Islamic law' did not satisfy the charitability requirement in colonial law (p 192). |
| Formalities |
See Maitland Lecture V. The acquisition and disposition of land and interests in land (whether by conveyance or trust) must be in writing (ss 7–9, Statute of Frauds; repealed and reenacted in LPA 1925, in particular s 53). A mere oral declaration of trust is invalid, although, as a matter of evidence, an ex post written statement will suffice to prove the existence of a trust, with the court recognising the existence of the trust from the time of oral declaration (p 59; cf Rochefoucauld). |
Syariah 'often privileges spoken testimony' (Yahaya, p 182 n 53), recognising the validity of verbal wills, for example (p 184). At p 185 n 64: 'Muslim jurists tended to view written documents with a generous measure of suspicion as the written word can be manipulated in a manner that the oral testimony of trustworthy persons cannot.' |