McLean v Attorney General of New South Wales & 2 Ors

In the Supreme Court of New South Wales, the case of McLean v Attorney General of New South Wales & 2 Ors involved a dispute over the construction of a bequest made by a deceased person, which was intended to benefit an unincorporated association for the promotion of a school and its associated activities. The association had never operated the school, raising questions about the proper beneficiary of the bequest. The Attorney-General, as the representative of the Crown, sought a declaration regarding the disposition of the estate.

The central legal issue was whether the gift, which was intended to benefit the unincorporated association for the promotion of a school and associated activities, could be validly construed as a charitable trust, and if so, how the funds should be distributed. The court needed to determine if section 10 of the Charitable Trusts Act 1993 applied to find a general charitable intention, and if so, what the appropriate type of cy près scheme would be. Additionally, the court had to consider the appropriate beneficiaries of the bequest, given that the association had never operated the school.

The court held that the bequest could be construed as a charitable trust, given the general charitable intention expressed by the testator. It applied section 10 of the Charitable Trusts Act 1993 to find that intention. The court also ruled that the funds should be applied in a manner that was closest to the testator's intentions, which involved the promotion of educational activities. It determined that the appropriate type of cy près scheme involved distributing the funds to another educational institution that aligned with the testator's intentions. The court found that the most suitable beneficiaries were those who would carry out educational activities similar to those intended by the testator.

The final orders of the court were that the bequest should be treated as a charitable trust, with the funds distributed to an educational institution that aligned with the testator's intentions. The court also directed that the funds be used for the promotion of educational activities, in a manner that was closest to the testator's original intentions.