Public Trustee v Attorney General & Ors [2005] NSWSC 1267

Public Trustee v Attorney General & Ors [2005] NSWSC 1267

The gifts in cl 5(i) and cl 5(iii) were not misdescriptions and did not lapse because, construed with the will and limited surrounding circumstances, they showed dominant charitable purposes of treating cancer and tuberculosis patients in hospital rather than an indispensable intention to benefit particular non-existent institutions; those purposes were charitable and displayed a general charitable intention, permitting cy-pres schemes at general law. Charitable Trusts Act 1993, s 9(1) was inapplicable to non-existent institutions.

Jurisdiction
Australia
Judgment Date
07 December 2005
Procedural Posture
Charitable Trust Proceedings Concerning Construction of a Will and Settlement of Cy Pres Schemes / In Chambers
Outcome
Leave to bring proceedings granted; declarations made that the gifts did not lapse and displayed a general charitable intention; cy-pres schemes settled; costs ordered from the estate on an indemnity basis for specified parties.
Legal Topics
['charitable Gifts by Will' 'non Existent Charitable Institutions' 'general Charitable Intention' 'cy Pres Schemes' 'leave to Bring Charitable Trust Proceedings' 'misdescription of Beneficiary']
['charities' 'trusts and Estates' 'succession'] ['charitable Gifts by Will' 'non Existent Charitable Institutions' 'general Charitable Intention' 'cy Pres Schemes' 'leave to Bring Charitable Trust Proceedings' 'misdescription of Beneficiary']

Case Brief

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Procedural Posture

Charitable Trust Proceedings Concerning Construction of a Will and Settlement of Cy Pres Schemes / In Chambers

Legal Issues

  1. 1 ['Whether leave to bring the charitable trust proceedings should be granted under the Charitable Trusts Act 1993.' 'Whether the gift to the Cancer Hospital in Sydney was a misdescription of the New South Wales State Cancer Council.' 'Whether gifts to the Cancer Hospital in Sydney and the Tuberculosis Hospital in Sydney lapsed or displayed a general charitable intention enabling application cy-pres.' 'Whether Charitable Trusts Act 1993, s 9(1) applied to gifts to non-existent institutions.' 'Whether cy-pres schemes should be settled and on what terms.']

Ratio Decidendi

The gifts in cl 5(i) and cl 5(iii) were not misdescriptions and did not lapse because, construed with the will and limited surrounding circumstances, they showed dominant charitable purposes of treating cancer and tuberculosis patients in hospital rather than an indispensable intention to benefit particular non-existent institutions; those purposes were charitable and displayed a general charitable intention, permitting cy-pres schemes at general law. Charitable Trusts Act 1993, s 9(1) was inapplicable to non-existent institutions.

Court Disposition

Leave to bring proceedings granted; declarations made that the gifts did not lapse and displayed a general charitable intention; cy-pres schemes settled; costs ordered from the estate on an indemnity basis for specified parties.

Orders

  • ['Leave granted to the Public Trustee to bring the proceedings.' "Declared that the gifts in sub-clauses 5(i) and 5(iii) of Madam Rintoul's last will did not lapse, contained gifts for charitable purposes and displayed a general charitable intention." 'Declared that in the circumstances that had happened it was...