Permanent Trustee v Attorney General of NSW [1999] NSWSC 288

Permanent Trustee v Attorney General of NSW [1999] NSWSC 288

The gift to the Margaret Reid Orthopaedic Hospital was a charitable trust for the purposes of the Hospital, not an outright gift, because the Hospital's objects were charitable and the will showed an intention to devote the property to those purposes. The testator had a general charitable intention, supported by the fact that both named charities assisted handicapped children and by the absence of any contrary evidence or particular association with the Hospital. Section 10 of the Charitable Trusts Act 1993 also presumed a general charitable intention. Accordingly the gift did not pass on partial intestacy and should be applied cy-près, with the Attorney General to establish the scheme...

Jurisdiction
Australia
Judgment Date
09 April 1999
Procedural Posture
Equity Proceeding Concerning Construction of a Will and Administration Cy Près of a Charitable Gift / Judgment on Whether a Scheme Should Be Established for Administration Cy Près or Whether There Is a Partial Intestacy
Outcome
The Court declared that the named Hospital did not exist, declared that the gift evidenced a general charitable intention, ordered the gift to be applied cy-près, and referred the establishment of a scheme to the Attorney General.
Legal Topics
['charitable Gifts and Trusts' 'cy Près Scheme' 'general Charitable Intention' 'lapse of Testamentary Gift' 'partial Intestacy']
['charities' 'trusts and Equity' 'succession and Wills'] ['charitable Gifts and Trusts' 'cy Près Scheme' 'general Charitable Intention' 'lapse of Testamentary Gift' 'partial Intestacy']

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Procedural Posture

Equity Proceeding Concerning Construction of a Will and Administration Cy Près of a Charitable Gift / Judgment on Whether a Scheme Should Be Established for Administration Cy Près or Whether There Is a Partial Intestacy

Legal Issues

  1. 1 ['Whether one half of the estate gifted to the Margaret Reid Orthopaedic Hospital should be administered cy-près in accordance with a general charitable intention or pass on partial intestacy.' 'Whether the gift was an outright gift to the Hospital or a charitable trust for the purposes of the Hospital.' 'Whether the testator had a general charitable intention despite the named Hospital having ceased to exist before his death.' 'Whether the establishment of a cy-près scheme should be referred to the Attorney General under s13 of the Charitable Trusts Act 1993.']

Ratio Decidendi

The gift to the Margaret Reid Orthopaedic Hospital was a charitable trust for the purposes of the Hospital, not an outright gift, because the Hospital's objects were charitable and the will showed an intention to devote the property to those purposes. The testator had a general charitable intention, supported by the fact that both named charities assisted handicapped children and by the absence of any contrary evidence or particular association with the Hospital. Section 10 of the Charitable Trusts Act 1993 also presumed a general charitable intention. Accordingly the gift did not pass on partial intestacy and should be applied cy-près, with the Attorney General to establish the scheme...

Court Disposition

The Court declared that the named Hospital did not exist, declared that the gift evidenced a general charitable intention, ordered the gift to be applied cy-près, and referred the establishment of a scheme to the Attorney General.

Orders

  • ['A declaration that there is no body in existence answering the description "Margaret Reid Orthopaedic Hospital, Pittwater Road, St. Ives" in Clause 6 of the will of Melbourne Earl Seibert, made 21st February 1950.' 'A declaration that the gift by the testator to the Margaret Reid Orthopaedic Hospital evidenced a...