Attorney-General (NSW) v Donnelly

The Attorney-General (NSW) appealed from a decision of the Supreme Court of New South Wales concerning the interpretation of certain trusts in a will. The primary dispute involved the validity of a trust established for "such Order of Nuns of the Catholic Church or the Christian Brothers as my said Executors and Trustees shall select" and a further trust for the provision of amenities in convents. The core of the disagreement lay in whether these trusts were valid charitable bequests, particularly in light of the inclusion of potentially non-charitable purposes or beneficiaries.

The legal issues before the court were whether the trust for the selected order of nuns or Christian Brothers was valid, and whether the residuary trust for the provision of amenities in convents was valid. Specifically, the court had to determine if the terms "Order of Nuns" and "amenities" were sufficiently certain and charitable, and whether the trusts were saved from invalidity by section 37D of the Conveyancing Act 1919-1954 (NSW), which addresses trusts with both charitable and non-charitable purposes. The court also considered whether the testator's use of the term "orders" was intended in a technical canonical sense or a broader, non-technical sense.

A majority of the High Court (Williams, Webb, and Kitto JJ.) held that the trust in clause 3 of the will was valid, finding that section 37D of the Conveyancing Act did not apply to it. However, the entire Court agreed that the trust in clause 5, and for some judges also clause 3, was saved from invalidity by the operation of section 37D. The Court further determined, by a majority, that the testator's reference to "orders" of nuns was intended in a non-technical sense, thus encompassing both orders and congregations of sisters. The court also considered the absence of a territorial limitation on the beneficiaries.

The High Court's decision affirmed in part and reversed in part the decision of the Supreme Court of New South Wales. The trust concerning the grazing property "Elmslea" was upheld as valid, while the trust concerning the residuary estate was also found to be valid, largely due to the application of section 37D of the Conveyancing Act.