Focus WILLS, ESTATES, CHARITIES & TRUSTS
English adoption decision raises equality law issues
Lawyers interested in the intersection of charity and
equality law will want to take
note of a recent English decision
that considered whether a Catholic charity could continue its
religiously inspired practice of
restricting adoption services to
The litigation in Catholic Care
(Diocese of Leeds) v. Charity Commission for England and Wales
 UKUT 395 (TCC) originated out of statutory reforms to
English equality law.
New legislative rules meant that
the appellant could continue to
exclude on the basis of sexual
orientation (which is a “protected
characteristic” under the relevant
English statute) only where two
new requirements were met: The
unequal treatment had to be in
“pursuance of a charitable instrument” (the charitableness requirement) and a “proportionate means
of achieving a legitimate aim” (the
Catholic Care applied to the
Charity Commission to amend its
memorandum of association so as
to specifically state that adoption
services would only be provided to
heterosexual couples. The amendment was significant because it
would allow the appellant to meet
the charitableness requirement
while providing a context for it to
demonstrate that the proportionality requirement was also met.
Upholding the decisions of the
commission and the First Tier
Tribunal, Mr. Justice Philip Sales
of the Upper Tier Tribunal found
against the appellant.
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detailed questions about the
client’s intentions, relationships,
and assets, and documents the
client’s answers to these questions. When the client is proposing, for example, a significant
deviation from a former will, it
is good legal practice to investigate and document the reasons
for the change. The lawyer may
also document asset values, title
and legal description details,
and other information that is
not usually included in the will
itself. Should the will be challenged after the client’s death,
this supporting documentation
may be invaluable to parties
seeking to uphold the will, and
Continued from page 13
the lawyer may turn out to be a
very valuable witness.
Finally, a common basis for a
challenge to a will is undue influ-
ence. Since lawyers are aware of
the potential for such influence
and are expected to look for and
guard against it, challenging a
lawyer-prepared will is often
harder than challenging a DIY
will. The challenger of a lawyer-
made will must effectively show
that not only was the testator
unduly influenced, but also that
the influence was effectively con-
cealed from the lawyer. Having a
lawyer prepare a will not only
results in a document much
more likely to be legally correct
and formally valid, but also lends
legitimacy to the process.
Nora Rock is corporate writer and
policy analyst at LawPro.
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tioned, though, whether the holding in Catholic Care reveals a sufficient sensitivity to context and
to diversity of opinion over highly
complex issues in relation to
which reasonable people may well
hold contrary positions.
There are indeed contexts, such
as retail establishments, where
the religious beliefs of individuals
are of such peripheral relevance
that one can readily see why such
beliefs would fail to make a lawful
basis for unequal treatment. The
difficult question is whether the
same analysis should necessarily
follow for adoption and other like
charitable services, where the
potential link with religious beliefs
can be more easily discerned.
Adam Parachin is an associate professor at the Faculty of Law at the University of Western Ontario where he
researches, teaches and writes in the
field of trusts, estates and charities law.
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