Application by Riley [2016] NSWSC 1676

Application by Riley [2016] NSWSC 1676

The gift to "The Trustees of BoysTown at Beaudesert" could be treated as having lapsed because there were no trustees of BoysTown as such, but the will showed a general charitable intention and BoysTown Limited, now YourTown Limited, was in substance carrying out the former charitable work; the trustee was therefore justified in applying that gift cy pres to BoysTown Limited. The gift to the Diocesan Trustees had not lapsed because it was expressly to the Diocesan Trustees for the work of the successors of the Cowper Children's Home, and the current successor was St Joseph's Cowper Limited; the trustee was justified in applying that gift to the Diocesan Trustees for that purpose.

Jurisdiction
Australia
Judgment Date
22 November 2016
Procedural Posture
Application for Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) Concerning Charitable Bequests in a Will / Ex Tempore Principal Judgment
Outcome
Trustee given judicial advice that the BoysTown gift may be applied cy pres to BoysTown Limited, now known as YourTown Limited, and that the Diocese of Lismore gift has not lapsed and may be applied to the Diocesan Trustees for the purposes of St Joseph's Cowper Limited.
Legal Topics
['judicial Advice to Trustee' 'charitable Bequests' 'cy Pres Application' 'lapse of Gifts' 'successors of Charitable Institutions']
['trusts and Trustees' 'succession' 'charities'] ['judicial Advice to Trustee' 'charitable Bequests' 'cy Pres Application' 'lapse of Gifts' 'successors of Charitable Institutions']

Case Brief

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Procedural Posture

Application for Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) Concerning Charitable Bequests in a Will / Ex Tempore Principal Judgment

Legal Issues

  1. 1 ['Whether the trustee was justified in treating the gift to "The Trustees of BoysTown at Beaudesert" as having lapsed.' 'Whether the trustee was justified in applying the gift to "The Trustees of BoysTown at Beaudesert" cy pres to BoysTown Limited, now known as YourTown Limited.' 'Whether the gift to "The Trustees of the Roman Catholic Church of the Diocese of Lismore for the work of the successors of the Cowper Children\'s Home" had lapsed.' "Whether the trustee was justified in applying the gift to the Diocesan Trustees to be used for the purposes of St Joseph's Cowper Limited."]

Ratio Decidendi

The gift to "The Trustees of BoysTown at Beaudesert" could be treated as having lapsed because there were no trustees of BoysTown as such, but the will showed a general charitable intention and BoysTown Limited, now YourTown Limited, was in substance carrying out the former charitable work; the trustee was therefore justified in applying that gift cy pres to BoysTown Limited. The gift to the Diocesan Trustees had not lapsed because it was expressly to the Diocesan Trustees for the work of the successors of the Cowper Children's Home, and the current successor was St Joseph's Cowper Limited; the trustee was justified in applying that gift to the Diocesan Trustees for that purpose.

Court Disposition

Trustee given judicial advice that the BoysTown gift may be applied cy pres to BoysTown Limited, now known as YourTown Limited, and that the Diocese of Lismore gift has not lapsed and may be applied to the Diocesan Trustees for the purposes of St Joseph's Cowper Limited.

Orders

  • ['Trustee would be justified in applying that part of the Trust property that Mr Johnson bequeathed to "The Trustees of BoysTown at Beaudesert" cy pres to BoysTown Limited, now known as YourTown Limited.' 'Trustee is justified in concluding that the gift to "The Trustees of the Roman Catholic Church of the Diocese...