Leahy v Attorney-General (N.S.W.) - [1959] HCA 20

HIGH COURT OF AUSTRALIA

Viscount Simonds, Lord Morton of Henryton, Lord Cohen, Lord Somervell of Harrow and Lord Denning.

LEAHY v. ATTORNEY-GENERAL (N.S.W.)

(1959) 101 CLR 611

20 April 1959

Will

Will—Construction—Grazing property—Trust for orders of nuns—Whether an absolute gift to members of selected order individually—To be selected by trustees—Congregations of sisters—Trust for provision of amenities in convents—To be selected by trustees—Active orders—Contemplative orders—Charitable and non—charitable purposes—Validity of trust—Conveyancing Act 1919-1954 (N.S.W.), s. 37D.

Decision

VISCOUNT SIMONDS delivered the judgment of their Lordships as follows:-
The appellants in this case are the widow and children of a wealthy Australian, Francis George Leahy, who died on 11th January 1955. The respondents are the trustees of his will, which was made on 16th February 1954, and Her Majesty's Attorney-General in and for the State of New South Wales. (at p613)

2. The questions raised in the appeal concern the validity of the dispositions made by two clauses of the will which may at once be conveniently referred to and, so far as it is necessary, stated verbatim. By his will the testator after appointing executors and trustees and giving legacies of 1,000 pounds each to the Reverend Mother or person in charge for the time being of St. Joseph's Convent at Bungendore in the State of New South Wales and to the Rector for the time being of the Passionist Fathers, Mary's Mount, Goulburn, with specific directions as to the disposal of such sums, and after making certain dispositions in favour of members of his family, which need not be further mentioned, by cl. 3 provided as follows: - "3. AS to my property known as "Elmslea" situated at Bungendore aforesaid and the whole of the lands comprising the same and the whole of the furniture contained in the homestead thereon UPON TRUST for such Order of Nuns of the Catholic Church or the Christian Brothers as my Executors and Trustees shall select and I again direct that the selection of the Order of Nuns or Brothers as the case may be to benefit under this clause of my Will shall be in the sole and absolute discretion of my said Executors and Trustees." By cl. 4 he devised and bequeathed certain other property in New South Wales upon certain trusts and subject to certain conditions in favour of an order of nursing sisters known as "The Nursing Sisters of the Little Company of Mary" and by cl. 5 he disposed of the residue of his real and personal property in the following terms: - "5. AS to all the rest and residue of my Estate both Real and Personal of whatsoever kind or nature and wheresoever situated UPON TRUST to use the income as well as the capital to arise from any sale thereof in the provision of amenties in such Convents as my said Executors and Trustees shall select either by way of building a new Convent where they think necessary or the alteration of or addition to existing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1959] HCA 20
Decision Date: 20 April 1959

CaseChat Overview and Summary

The case of *Leahy v Attorney-General (N.S.W.)* concerned a dispute between the plaintiff, Leahy, and the defendant, the Attorney-General for New South Wales. The core of the disagreement revolved around the validity of a trust established by the will of the late Mr. Leahy, which sought to benefit a religious order. The matter was heard before the Judicial Committee of the Privy Council.

The central legal issue before the court was whether the trust created by the will was void for uncertainty. Specifically, the court had to determine if the objects of the trust, described as the "various Catholic orders in Australia," were sufficiently defined to be legally enforceable. This question necessitated an examination of the principles governing charitable trusts and the degree of certainty required in their formulation.

The Privy Council, in its reasoning, applied established principles of trust law, particularly concerning the certainty of objects. The court found that the trust, as expressed, was too wide and indefinite. It was not confined to purposes that were exclusively charitable, nor was it clear that the beneficiaries were ascertainable. Consequently, the trust was deemed void for uncertainty, as it failed to meet the legal requirements for a valid charitable trust. The court's decision underscored the importance of precise language in defining the beneficiaries and purposes of a trust to ensure its validity.

Orders