South Eastern Sydney Area Health Service v Wallace [2003] NSWSC 1061

South Eastern Sydney Area Health Service v Wallace [2003] NSWSC 1061

The trust for perpetual maintenance of certain graves is void for perpetuity, not being charitable. The subsequent gift over to the Prince Henry Hospital is valid because it is not dependent on, nor expectant upon, the invalid trust, and vested independently in the charity upon the trustee's opinion that the prior...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
24 November 2003
Procedural Posture
Application (originating Summons) / Judgment After Hearing
Outcome
Orders for application of the charitable gift cy-près as per the short minutes to be brought in.
Legal Topics
['tomb Trusts' 'rule Against Perpetuities' 'cy Près Doctrine' 'charitable Gifts' 'invalid Non Charitable Trusts']
['equity' 'wills and Estates' 'charities'] ['tomb Trusts' 'rule Against Perpetuities' 'cy Près Doctrine' 'charitable Gifts' 'invalid Non Charitable Trusts']

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application (originating Summons) / Judgment After Hearing

Legal Issues

  1. 1 ["Whether a perpetual 'tomb trust' for maintenance of cemetery graves is valid under the rule against perpetuities" 'Whether the charitable gift over to a hospital is valid or too remote due to its relationship with the invalid tomb trust' 'Whether the gift over to charity can be applied cy-près to a new hospital for substantially similar purposes']

Ratio Decidendi

The trust for perpetual maintenance of certain graves is void for perpetuity, not being charitable. The subsequent gift over to the Prince Henry Hospital is valid because it is not dependent on, nor expectant upon, the invalid trust, and vested independently in the charity upon the trustee's opinion that the prior trust was impracticable. The cy-près doctrine applies to redirect the gift to oncology purposes at the Prince of Wales Hospital, as the original hospital and ward cannot fulfil the testator's wishes.

Court Disposition

Orders for application of the charitable gift cy-près as per the short minutes to be brought in.

Orders

  • ["Application of the charitable gift in the Will to be made cy-près to similar oncology purposes at the Prince of Wales Hospital, Ward to bear testatrix's name."]