In 1953, Stafford Sands became the trustee, of a discretionary fund established to underwrite the education of white Bahamians, exclusively. In 1970, some seventeen years later, for reasons unknown, the nature and intent, of the wording of the provisions of this testamentary trust, established for the education and welfare of one or more white Bahamian born British subjects, was challenged.

The Canadian asset holding company acting as another trustee, and who also held financial management responsibilities for the remainder of the estate of the testator, on instructions from a subsequent beneficiary, requested further legal explanation of the Bahamas government, on wording of part of the will related to this education trust for white Bahamians.

This would lead to a civil case, which would in turn lead to a decision being sought in the Bahamas Court of Appeal. Over the next sixteen years, the case would be taken from initial decision, to Appeal, and then, to the Privy Council, in London.

The outcome would establish precedent law on the creation of charities and charitable trusts in the Bahamas. The case would be cited many times in other similar cases as precedent law.

The details, the truth behind the case, the personalities few really know. No one alive today knows why so many hasty additions were made to the will in the last few days of the testator’s life. No one knows what role or influence Stafford Sands played in the last minute provisions which had been added and would cause so much legal furore two decades later.

What is substantively interesting is the downplaying, throughout all of the legal arguments, of a key component in the testator’s will; the provision that education monies were for whites only.

Bahamas (A.G.) v. Royal Trust (1986), 105 N.R. 134 (PC)

Concluded that:

What cannot be construed as a charitable trust:

A testamentary trust requested the trustees to use the income from the capital and any part therefrom “for any purposes for and/or connected with the education and welfare of Bahamian children …” – The Judicial Committee of the Privy Council held that the bequest was not a charitable trust because the word “welfare” as used here was of the widest import and could include anything, including non-charitable purposes, which would lead to the enhancement of the quality of life of any member of the class designated by the will.”

Construction and Interpretation of words:

“And” construed as “or” – A testamentary trust requested the trustees to use the income from the capital and any part therefrom “for any purposes for and/or connected with the education and welfare of Bahamian children …” – Were the words “education and welfare” to be interpreted conjunctively or disjunctively? – The Judicial Committee of the Privy Council answered that, given the content in which the words were written, they were to be interpreted disjunctively.

Bahamas (A.G.) v. Royal Trust (1986), 105 N.R. 134 (PC)

Attorney General (appellant) v. The Royal Trust Company and Ernest Raymond Lawson (respondents)

(P.C. Appeal No. 37-1984)

APRIL 1953 – WEALTHY ALBERT WORSWICK DIES IN NASSAU

Wealthy Canadian, Albert Edward Worswick, born January 25, 1872; died at age 82, in Nassau on 20th April 1953. Stafford Sands, Bahamian government minister, was made trustee of a portion of the estate). The widow Delphine Elizabeth Worswick (nee Shaw and nee Flatan) and a Canadian asset management company called Royal Trust Company were also trustees.

Worswick’s last will and testament was executed on 30th April 1951. Subsequent to this he made three amending codicils to his 1951 last will and testament.

Codicil ONE was executed on 13th September 1951.

Codicil TWO on 16th March 1951.

Codicil THREE on 8th April 1953. The last two codicils were signed less than 30 days before Worswick’s death.

Worswick left substantial monies to his wife for her lifetime.

Delphine Worswick quickly remarried a year after her husband’s death, to man many considered made a living by marrying wealthy women. This would be her third marriage.

Delphine Worswick became the fourth wife of Dwight C. Paul from Palm Beach.

1968 – DEATHS OF BOTH DWIGHT C. Paul and DELPHINE ELIZABETH WORSWICK PAUL

Dwight Paul died 4th February 1968

Delphine Elizabeth Flatan Worswick Paul died on 4th April 1968

1970 – Trust For Education of White Bahamians Challenged Based on Wording.

In 1970, the surviving representative of Worswick’s wife, Delphine Worswick Paul, had come to Nassau to challenge the provision of the Albert Worwsick’s will which related to the education and welfare of Bahamian children.

In truth, the trust established for the education of one or more “white” Bahamian children only.

Stafford Sands, trustee of Testamentary Education Fund is nowhere to be found. Sands left the Bahamas, for Europe, in 1967.

1970 – THIRD CODICIL TO THE WILL IS CHALLENGED ON THE TERMS OF TRUST RELATING TO THE EDUCATION AND WELFARE OF ONE OR MORE WHITE BAHAMIAN CHILDREN

What was being challenged in 1970, was the wording, of one word, in the third codicil. The word which ignited all the controversy some 17 years after the principals involved had died, was the word WELFARE.

Albert Edward Worswick (“the testator”) died on April 20, 1953. He was richly endowed with this world’s goods. His will was made on April 30, 1951; on September 13, 1951, the testator executed a first codicil to his will; a second codicil was executed on March 16, 1953. On April 8, 1953 the testator made his third codicil. It was this codicil which, inter alia, inserted paragraph (t) (the controversial paragraph) in clause 15 of his will.

On July 15, 1970 the Royal Trust Company took out an Originating Summons seeking the determination of a number of a questions arising in the will and third codicil of the testator. One of these questions for determination was:- “whether the bequest in paragraph (t) of Clause 15 (inserted by the third Codicil to the Will of the Testator) is a valid charitable bequest or is void”.

This court is not directly concerned with the other matters raised in the Originating Summons. In an illuminating judgment the learned Chief Justice dealt with the questions raised in the Originating Summons. The appeal from his judgment is only in respect of the bequest contained in clause 15(t) of the testator’s will – whether it is a valid charitable bequest or is void.

The court was informed that this was the first time that a court in the Bahamas had to determine what is a charitable trust according to the laws of the Commonwealth of the Bahamas. One must accept this statement with a caveat – because the absence of any system for reporting the judgments of the judges in the courts in the Bahamas, or indeed preserving them in any form that is readily accessible, makes it impossible to be completely certain that this is a case of first impression. We can only say so far as we are aware the judicial path in this matter is untrodden.

“The relevant words in the bequest in clause 15(t) inserted by the third codicil requiring interpretation of the trust purposes are “for any purposes for and/or connected with the education and welfare” The learned Chief Justice came to the conclusion that in the context of the will the particle “and” as it appears in the phrase “education and welfare” in clause 25 (t) should be construed disjunctively and not conjunctively. He rejected the submission of the learned Director that the exegetical construction was to be adopted that is, that the word “welfare” should be read as explanatory of “education” – welfare pertaining to education. The learned Chief Justice then went on to hold that the word “welfare” in clause 15(t) of the testator’s will could be equated with “well being” and that, in the absence of any controlling context whatsoever, it would be permissible for the trustees to apply the capital or the income of the trust in a way which is not charitable in the eye of the law. He therefore held the bequest in question is not a good charitable bequest and is void.”

THE COURTS HAD TO CONSIDER WHAT THE WORD “WELFARE” MEANT. IT TOOK 16 YEARS FOR A DEFINITIVE ANSWER

It was the word WELFARE that ignited a fight over the residue of Albert Worswick’s estate valued at some $6,000,000 by the 1970s.

Worswick made provision in his will for the education and “welfare” of Bahamian children. Only white children it appears. Albert E. Worswick left his wife Delphine Elizabeth Worswick, Bahamian lawyer and politician Sir Stafford Sands and the Royal Trust Company of Canada as trustees of his estate.

The wording of a provision in the will was first challenged in 1970, some seventeen years after it was made. The case would then take sixteen years to finally be resolved.

In the end, the final judgement of the Privy Council created, unequivocal new law which established what can and cannot be considered a charitable trust in the Bahamas.

TESTAMENTARY TRUST PROVISIONS QUESTIONED AS ORIGINALLY WRITTEN IN WILL OF ALBERT EDWARD WORSWICK 1953

CLAUSE 15 (h) – annuities for the support of white women of good character and respectability and in reduced circumstances resident in New Providence.

(i) The sum of £1000 to be used by the trustees for the purposes of the Saint Andrews Society in the Bahamas.

(j) The income from investment of trust monies to be used by the trustees in their absolute discretion for the education and maintenance of one or more white Bahamian born British subjects of either sex in any school or school and or university or universities in the British Empire or the United States of America.

(k) The income from investments of trust monies to be used by the trustees in their absolute discretion to educate and maintain one or more Bahamian born British subjects of either sex as doctors of medicine, doctors of dental surgery and or trained nurses in any school or schools and/or university or universities in the British Empire or the United States of America.

(l) The income from investments of trust monies to be used by the trustees in their absolute discretion for the maintenance education benefit and support with in the colony of white Bahamian born British subjects of either sex between the ages of six years and 18 years.

(m) The sum of £2000 to be used in improving the quarters and in providing comforts for the lepers under the care of the Bahamian government.