Lankry v Clairvision School Limited [2005] NSWSC 1094

Lankry v Clairvision School Limited [2005] NSWSC 1094

The gift in clause 4 of the will took effect because the Clairvision School Foundation Trust continued to exist notwithstanding the replacement of Clairvision School Limited by Vertical Point Pty Limited as trustee, the trust did not fail for want of a trustee, and the foundation's objects were charitable or saved by section 23 of the Charitable Trusts Act 1993 (NSW). The trustee's indirect funding arrangements did not mean the foundation was defunct or no longer the object of the testatrix's bounty.

Jurisdiction
Australia
Judgment Date
28 October 2005
Procedural Posture
Equity Proceedings for Declaratory Relief Concerning the Meaning and Effect of a Testamentary Gift to a Charitable Trust / Judgment After Hearing
Outcome
Declaration proposed that the gift in clause 4 of the will took effect as a valid gift to Vertical Point Pty Limited as trustee of the Clairvision School Foundation Trust.
Legal Topics
['charitable Trust for Teaching Esoteric Christianity' 'validity of Testamentary Gift to Charity' "change of Trustee Before Testatrix's Death" 'charitable Trusts Act 1993 (nsw)' 'whether Trust Exists or Has Failed' 'delegation of Testamentary Power']
['charity Law' 'trusts' 'succession' 'equity'] ['charitable Trust for Teaching Esoteric Christianity' 'validity of Testamentary Gift to Charity' "change of Trustee Before Testatrix's Death" 'charitable Trusts Act 1993 (nsw)' 'whether Trust Exists or Has Failed' 'delegation of Testamentary Power']

Case Brief

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Procedural Posture

Equity Proceedings for Declaratory Relief Concerning the Meaning and Effect of a Testamentary Gift to a Charitable Trust / Judgment After Hearing

Legal Issues

  1. 1 ["Whether the gift in clause 4 of the will to Clairvision School Limited as trustee for the Clairvision School Foundation took effect after Clairvision School Limited had ceased to be trustee before the testatrix's death." "Whether the Clairvision School Foundation continued to exist and function as the object of the testatrix's bounty despite the appointment of Vertical Point Pty Limited as trustee and the use of loans to fund activities." 'Whether the purposes of the Clairvision School Foundation were charitable, or were saved as charitable by the Charitable Trusts Act 1993 (NSW).' 'Whether it was necessary to resort to clause 5 of the will.']

Ratio Decidendi

The gift in clause 4 of the will took effect because the Clairvision School Foundation Trust continued to exist notwithstanding the replacement of Clairvision School Limited by Vertical Point Pty Limited as trustee, the trust did not fail for want of a trustee, and the foundation's objects were charitable or saved by section 23 of the Charitable Trusts Act 1993 (NSW). The trustee's indirect funding arrangements did not mean the foundation was defunct or no longer the object of the testatrix's bounty.

Court Disposition

Declaration proposed that the gift in clause 4 of the will took effect as a valid gift to Vertical Point Pty Limited as trustee of the Clairvision School Foundation Trust.

Orders

  • ['The parties were directed to bring in, on a date to be fixed, short minutes of orders appropriate to be made in light of the reasons.']