By Darryl Browne -
Key decisions
- Perpetual Trustee Company Ltd v University of New South Wales [2023] NSWSC 1061 (Charitable trust)
- FNK [2023] NSWCATGD 11 and CJ v AKJ [2015] NSWSC 498 (Financial manager)
- In the Estate of Cervo [2023] ACTSC 283 (Independent administrator)
- Re Chambers (dec’d) [2023] QSC 230 (Formal validity of a will)
- Crimes Amendment (Corrupt Benefits for Trustees) Act 2023 (Inducement for replacing a trustee)
- Re Rentis Pty Ltd [2023] QSC 252 (Attorney’s authority)
- Shaw v McKean as executor of the estate of the late Ellen Mary May McKean [2023] QSC 261 (Disclaimer)
Construction of gift for a charitable purpose
Richard Bradley’s will gave his estate upon trust for the Centenary Foundation to pay 75 per cent of the income to The Marist Fathers for the Province of Australia and 25 per cent to the Medical Foundation of the University of NSW, each with a wish that the income be used in a particular manner. Clause 5 of the will directed that should any of the charities cease to exist, the Trustee may substitute similar organisations as it may determine are carrying out similar charitable purposes.
The will gave rise to three issues. First, by reason of the terms of the trust for the Centenary Foundation, it was impossible for the Trustee to accept the gift as it contained a direction which the Trustee could not comply with (Perpetual Trustee Company Ltd v University of New South Wales [2023] NSWSC 1061 (McGrath J) at [26]). The Court concluded ‘the gift to the Centenary Foundation was not an essential part of the charitable intention of the Deceased, but is more appropriately characterised as a procedural mechanism employed by the Deceased to achieve his ultimate charitable purpose, which was to benefit each of the charitable institutions who are specifically identified in …the Will’ (at [35]).
There was ‘no machinery in the will to appoint an alternative trustee and there was no person or entity capable of appointing a new trustee pursuant to s 6 of the Trustee Act 1925’ (at [35]). The Court exercised its powers pursuant to s 70 of the Trustee Act 1925 (‘Trustee Act’) or its inherent jurisdiction to appoint Perpetual Trustee Company Ltd as trustee of the gift (at [36]).
