Public Trustee (G.D. Butler Medal Trust) v Attorney-General (SA)
[2019] SASC 21
•28 February 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
PUBLIC TRUSTEE (G.D. BUTLER MEDAL TRUST) v ATTORNEY-GENERAL (SA)
[2019] SASC 21
Judgment of The Honourable Justice Hinton
28 February 2019
CHARITIES - ADMINISTRATION AND CONTROL BY COURT - GENERALLY
CHARITIES - CHARITABLE GIFTS AND TRUSTS - IN GENERAL - CONSTRUCTION - ASCERTAINMENT OF OBJECTS - GENERALLY
The Public Trustee applied pursuant to s 69B of the Trustee Act 1936 (SA) for orders approving a trust variation scheme for the G.D. Butler Medal Trust (the Trust). In the alternative the Public Trustee sought the imposition of an administrative scheme in the exercise of the inherent power the Court possesses in relation to charitable trusts.
The Trust was established in 1961. A sum of £100 was paid to the Public Trustee “for the purpose of founding an annual prize at the Bordertown High School or any substituted scholastic establishment … to keep the ideal of the correct usage of the English language continually before the students attending the School”. Clause 7 of the trust deed provided that the Trust was to continue in perpetuity but if after 100 years the income became insufficient to maintain the award, the Public Trustee was to pay the capital and any accumulated amount to the School Committee for the use and benefit of the School.
The Public Trustee advised the Court that the annual income of the Trust was insufficient to fund the annual prize and that it was unlikely to generate sufficient income to do so in the future. The variation the Public Trustee sought would empower her to bring the Trust to an end sooner than contemplated by clause 7. The Attorney-General did not oppose the trust variation scheme.
Held, granting the application, the Trust is to be administered as if the terms of the trust deed include a clause 8 in the following terms:
Notwithstanding clause 7, if at any time the Trustee in its absolute discretion considers that the income of the trust is insufficient to maintain the award, then the Trustee shall pay the capital and any accumulated income to the School Committee on terms as stated in clause 7.
Supreme Court Act 1935 (SA) s 17; Trustee Act 1936 (SA) s 69B, referred to.
In Re J W Laing Trust [1984] Ch 143, discussed.
Baptist Churches of South Australia Inc v Attorney-General (SA) [2018] SASC 14; Corish v Attorney-General’s Department of NSW [2006] NSWSC 1219; In Re Lepton’s Charity [1972] Ch 276; Re Estate of Pitt (2002) 84 SASR 109; Re the Lutheran Laypeople’s League of Australia Inc [2016] SASC 106, considered.
PUBLIC TRUSTEE (G.D. BUTLER MEDAL TRUST) v ATTORNEY-GENERAL (SA)
[2019] SASC 21Civil
HINTON J:
Introduction
This is an application by the Public Trustee pursuant to s 69B of the Trustee Act 1936 (SA) (the Act or Trustee Act) seeking orders approving a trust variation scheme for the G.D. Butler Medal Trust (the Trust), a charitable trust of which the Public Trustee is and has been trustee since 1961. In the alternative the Public Trustee seeks the variation of the Trust in the exercise of the inherent jurisdiction possessed by this Court in relation to charitable trusts. The Attorney-General is not opposed to the trust variation scheme sought by the Public Trustee. For the reasons that follow, I would grant the application in the exercise of this Court’s inherent jurisdiction to impose a scheme for the administration of the Trust.
The G.D. Butler Medal Trust and the application
George Duncan Butler was a retired farmer who lived in Bordertown. On 5 December 1961 he executed a trust deed pursuant to which he paid the sum of £100 to the Public Trustee “for the purpose of founding an annual prize at the Bordertown High School or any substituted scholastic establishment … to keep the ideal of the correct usage of the English language continually before the students attending the School”. The terms of the trust deed provide that the Public Trustee hold the money upon trust subject to the provisions contained in the deed. Clause 2 of the deed obliges the Public Trustee to invest the money. Clauses 3, 4 and 5 deal with the amount to be made available for the annual prize, the nature of the prize and the selection of the prize winner. They provide:
3. The Trustee shall annually notify the Headmaster of the School, at such time as may be agreed between them, of the amount of income available for the prize, and shall subsequently pay to the School Committee on trust to be used for the purposes of the prize, the whole or such part of the income as the Headmaster may nominate.
4. The net annual income from the said sum shall be used to provide an annual prize at the school, to be known as “The G.D. Butler Medal for English” and shall be paid to the School Committee who shall purchase a suitable medal which shall be engraved with the words “The G.D. Butler Medal for English Language” and it shall be awarded annually to whomsoever of its students that the Headmaster of the School may select as showing the greatest talent and ability in written usage of the English language judged in the light of such student’s
(a) clarity and accuracy of English composition and expression
(b)style of writing (excluding calligraphy)
(c)arrangement of ideas
(d) interest in English literature and
(e) knowledge of facts and texts.
5. The Headmaster’s decision shall be final and may be based on a student’s work throughout the year or on a special examination or as the Headmaster may see fit.
Clause 6 provides that any amount remaining after payment for the prize is made out of the net annual income generated by the investment of the trust fund shall be added to and form part of the capital of the trust fund.
The final clause is clause 7. It provides:
7. It is the donor’s wish that the trusts created hereby shall continue in perpetuity but if after one hundred years the income be insufficient to maintain the award the Trustee shall pay the capital and any accumulated amount to the School Committee for the use and benefit of the School as the Committee may decide.
By her application the Public Trustee seeks to vary the terms of the trust by inserting a new clause 8 being as follows:
8. That if at any time the Trustee in its absolute discretion considers that the income of the trust is insufficient to maintain the award, then the Trustee shall pay the capital and any accumulated income to the School Committee on terms as stated in clause 7.
If inserted into the Trust this clause would empower the Trustee to bring the Trust to an end sooner than is contemplated by clause 7.[1]
[1] A charitable trust comes to an end once the funds are completely expended and exhausted: In Re Quesnel Deceased [1959] SASR 106 at 110 (Napier CJ).
In an affidavit affirmed in support of the application, the Public Trustee advises that the value of the trust fund, as at 14 June 2017, was $487.67, that the income generated by the fund in the 2015/2016 financial year was $14.04, and that the sum of $11.15 was paid to the Principal of the Bordertown High School in 2015 in compliance with the terms of the Trust. In her affidavit the Public Trustee also advises that the annual income of the Trust is currently insufficient to pay for the G.D. Butler Medal for English and it is unlikely that the income generated by the Trust will increase sufficiently to do so in the future. In the circumstances, the Public Trustee has consulted with the Department of Education and Child Development and the Bordertown High School. It is as a result of that consultation that the current application is made.
The Court has also received an affidavit from Mr Markus Ian Trnovsky, the Principal of Bordertown High School. Mr Trnovsky deposes to being aware of the G.D. Butler Medal Trust and the fact that the trust fund is inadequate to generate an amount sufficient to maintain the award. In the circumstances he advises that he supports the application made by the Public Trustee.
It is plain from the affidavits of the Public Trustee and Mr Trnovsky that the intention is to amend the trust deed so that the Trust may be brought to an end.
There is no doubt, and it was not disputed, that the Trust is a charitable trust.[2] In the summons taken out in this Court the Public Trustee contends that the power to vary the terms of the Trust is to be found in s 69B of the Act or, alternately, the inherent power that this Court possesses to make a cy-prés scheme. Further, should the Court be of the opinion that the alteration posed ventures beyond the purposes of the trust to the machinery for its execution, the power to effect a variation of that nature is to be found in the inherent power that the Court possesses to impose an administrative scheme.
[2] There was no dispute that the trust was one for the advancement of the education of a sufficient section of the public as to be a charitable trust; see generally, National Anti-Vivisection Society v Inland Revenue Commissioners [1948] AC 31; The Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531; Chesterman v Federal Commissioner of Taxation [1926] AC 128; Tasmanian Perpetual Trustees v Attorney-General (Tas) [2017] TASSC 32; Powell v Compton [1945] Ch 123; In Re Mariette; Mariette v Governing Body of Aldenham School [1915] 2 Ch 284; Thompson v Thompson (1844) 1 Coll 381; 63 ER 464.
Before considering these sources of power and which, if any, should be exercised, it is necessary to consider what precisely proposed clause 8 would do if the variation scheme sought were approved.
The purpose of the variation and the original trust purpose
The primary purpose or object of the Trust was to encourage proficiency in the use of the English language by students attending Bordertown High School (or any substituted scholastic establishment) (the primary purpose). That object was to be achieved by the incentive provided by the establishment of an annual prize to be awarded to the student “showing the greatest talent and ability in written usage of the English language”. To this end, as mentioned, the settlor provided £100 to be invested by the Public Trustee which the settlor no doubt considered would generate an annual income sufficient to meet the cost of the annual award into the future (the subsidiary purpose).
Clause 7 makes plain that the settlor wished that the prize would be awarded in perpetuity. However, that clause also indicates that the settlor turned his mind to the possibility that the capital provided might in future fail to generate an annual income sufficient to cover the cost of the annual prize. In that eventuality the clause provided that the primary trust would come to an end and a gift over be made. That is, clause 7 provides that if after 100 years the income from the trust fund is insufficient to maintain the award the capital and any accumulated amount is to be paid to the School Committee for the use and benefit of the School as the Committee may decide (the gift over).[3]
[3] See William Henderson, Jonathan Fowles and Julian Smith, Tudor on Charities (Sweet & Maxwell, 10th ed, 2015) at [6-035]-[6-038], [10-098].
Proposed clause 8 does not expressly alter the primary purpose of the Trust. Nor does it expressly alter the gift over insofar as the capital and income are to be paid to the School Committee for the use and benefit of the School as the Committee may decide. What it does do is expressly provide for an additional circumstance that may trigger the abandonment of the primary purpose in favour of making the gift over.
Returning to clause 7. It has two parts. The first is expressed as a wish. The second is a proviso that applies where the wish cannot be achieved. The proviso prompts the question, did the settlor intend to burden the Trustee with the obligations imposed by the Trust for 100 years irrespective of whether circumstances allow for those objectives to be discharged? I think the answer must be, “no”. The settlor’s intent was that an award be made annually, not from time to time as the income generated permitted, until at least 100 years had passed. The intermittent conferral of the award is inconsistent with the settlor’s overall purpose of keeping “the ideal of the correct usage of the English language continually before the students attending” Bordertown High School (or any substituted scholastic establishment) and the express commands contained in clauses 3 and 4. In my view, the Trust does not deal with the circumstance subject of proposed clause 8. If this is right, proposed clause 8 may be said to alter implicitly the primary purpose in that that purpose is no longer to be pursued in perpetuity but only until such time as the Trustee considers that the income generated remains sufficient to maintain the award. It also alters the circumstances in which the gift over may occur in that despite a period of less than 100 years passing the capital and any income may be paid to the School Committee and applied as the Committee determines if the Trustee forms the relevant opinion.
Proposed clause 8 does not permit the expenditure of the capital on the primary purpose of the Trust. To the extent that proposed clause 8 sees the capital and any accumulated income paid to the School Committee, it authorises the expenditure of the capital in the same way as may be done under clause 7, save that it allows for that to occur sooner than contemplated by clause 7.
Should a trust variation scheme be approved under s 69B of the Trustee Act?
Section 69B provides:
69B—Alteration of purposes of charitable trust
(1) The purposes for which property is required or permitted to be applied in pursuance of a charitable trust may be altered by a scheme (a trust variation scheme) approved under this section in any of the following circumstances:
(a)where the original purposes, in whole or in part—
(i)have been as far as possible fulfilled; or
(ii)cannot be carried out, or not according to the directions given and to the spirit of the gift; or
(b)where the original purposes provide a use for part only of the trust property; or
(c)where the trust property could be more effectively used if combined with other property applicable for similar purposes and administered jointly with that property; or
(d)where it is not reasonably practicable having regard to—
(i)the value of the trust property; or
(ii)changes in circumstances that have taken place since the constitution of the trust; or
(iii)any other relevant factor,
to apply the trust property in accordance with the original purposes; or
(e)where the original purposes, in whole or in part—
(i)have been adequately provided for by other means; or
(ii)have ceased to be charitable purposes; or
(iii)have ceased to provide a suitable and effective method of using the trust property.
(2) References in this section to the original purposes of a charitable trust shall be construed, where the purposes for which the trust property is required or permitted to be applied have been altered or regulated by a scheme or otherwise, as referring to the purposes for which the property is for the time being required or permitted to be applied.
(3) A trust variation scheme may be approved, on the application of the trustee, by—
(a) the Supreme Court; or
(b)if the value of the trust property does not exceed $300 000 or another limit prescribed by regulation—the Attorney-General.
(3a) The authority to which the application is made (ie the Supreme Court or the Attorney-General) is referred to in this section as the relevant authority.
(4) However, the Attorney-General has a discretion to refer an application to the Supreme Court if the application raises questions that should, in the Attorney-General’s opinion, be decided by the Court.
(5) Notice of an application for approval of a trust variation scheme must be given as the relevant authority directs.
(6) If the relevant authority is satisfied, on application under this section, that the variation of the terms of a trust proposed in a trust variation scheme—
(a) accords, as far as reasonably practicable, with the spirit of the trust; and
(b) is justified in the circumstances of the particular case,
the relevant authority may approve the trust variation scheme and the approved scheme
prevails over inconsistent provisions of a relevant instrument or declaration of trust.
(7) The reasonable costs of an application under this section are payable at the direction of the relevant authority from the trust property.
(8) In the case of an application decided by the Attorney-General, the costs—
(a) are to be fixed by the Attorney-General; and
(b)may include costs payable to the Crown to defray the cost of investigating and deciding the application; and
(c) may be recovered as a debt.
(9) The Attorney-General must keep available for public inspection a register of approvals given by the Attorney-General under this section.
In Re Estate of Pitt Duggan J considered that the chapeau to s 69B(1) did not exclude the operation of the cy-prés doctrine.[4] The inherent power to award a cy-prés scheme aside, the power to approve a trust variation scheme is contained in s 69B(3). The circumstances that must exist before the power may be exercised are set out in ss 69B(1)(a)-(e). That is, s 69B(1) conditions the power conferred by s 69B(3). If any of the circumstances set out in s 69B(1) are found to exist the power conferred by s 69B(3) is enlivened, however, such power may only be exercised if the requirements of s 69B(6) are also satisfied. Section 69B(6) contains two requirements. They are cumulative. With respect to the first requirement, the “spirit of the gift” was held in In Re Lepton’s Charity to “be equivalent in meaning to the basic intention underlying the gift, that intention being ascertainable from the terms of the relevant instrument read in the light of the admissible evidence”.[5] It follows that in determining the spirit of the gift one will have regard to the class or classes of beneficiary, the location, time or circumstances in which gifts are to be made to the beneficiaries, and the nature of the benefit intended to be achieved. With respect to the second requirement, it must always be borne in mind that the primary responsibility of this Court in the administration of charitable trusts is to give effect to the trusts as laid down by the settlor or testator.[6] Thus, if a trust variation scheme is to be made the circumstances must be of sufficient cogency to justify the alteration bearing in mind the settlor’s original intentions. Accepting this, a variation will not be justified on the basis of mere expediency or because the trust assets could be used more beneficially for a different purpose.[7]
[4] (2002) 84 SASR 109 at [40].
[5] [1972] Ch 276 at 285.
[6] Phillips v Roberts [1975] 2 NSWLR 207 at 211-212 (Hutley JA).
[7] Baptist Churches of South Australia Inc v Attorney-General (SA) [2018] SASC 14 at [19] (Stanley J).
Something more needs to be said about the power to approve a trust variation scheme under s 69B(3). Section 69B(1) makes plain that a trust variation scheme may do no more than alter the purposes for which property is required or permitted to be applied in pursuance of a charitable trust. It does not empower the Court to alter machinery provisions. In Baptist Churches of South Australia Inc v Attorney-General (SA) Stanley J said:[8]
Section 69B only empowers the Court to vary the purposes of a charitable trust, in the sense of the objects to be benefited by the charity. The purposes do not include provisions dealing only with administration or the machinery for carrying out the trust purposes.
The Court’s power to complement a variation pursuant to s 69B of the Trustee Act, by providing the appropriate machinery to render trust purposes operable, derives from its inherent jurisdiction.
[footnote omitted] [emphasis in original]
[8] [2018] SASC 14 at [25]-[26].
In the present case the question becomes, does proposed clause 8 vary the purposes for which property is required or permitted by the trust deed to be applied? In my view, it does not.
For the reasons given above, I consider proposed clause 8 to deal with the administration or management of the Trust. The proposed clause does no more than alter the timing as to when the gift over may be made. It deals with the question of for how long the annual award is to be made.
It may be said that a purpose of the Trust was that the annual prize be awarded in perpetuity and that to the extent that proposed clause 8 provides for the Trust to be brought to an end it alters the primary purpose. However, clause 7 indicates that the settlor contemplated that the primary purpose may be unobtainable in perpetuity. In my view, clause 7 indicates that the settlor’s intent was that the annual prize be awarded for as long as possible and, hopefully, for a period greater than 100 years. In these circumstances, it does not alter the purpose or offend that intention to approve a variation scheme that allows for the gift over to be made sooner than as provided by clause 7 — the primary purpose has been attained for as long as possible. Further, and in any event, the text of s 69B(1) makes plain that it is not concerned with every provision of a trust that may affect how the trust property is to be distributed only those prescribing the “purposes for which property is required or permitted to be applied”. Hence, Stanley J’s distinction between the administrative or machinery provisions of a charitable trust and the provisions that identify the purposes to which trust property may be applied.[9]
[9] Baptist Churches of South Australia Inc v Attorney-General (SA) [2018] SASC 14 at [29]-[30].
In my view, the current application is not one falling within the ambit of s 69B.
Should a scheme for the administration of the Trust be imposed?
This Court, being vested with the like jurisdiction and powers of the Court of Chancery, has inherent jurisdiction to supervise and regulate the administration of trusts generally.[10] In the exercise of this jurisdiction it is important to distinguish between charitable trusts and non-charitable trusts. In some authorities the jurisdiction in relation to the former is referred to as a “special jurisdiction” different to the “general jurisdiction” enjoyed in relation to the latter.[11] One reason as to why the distinction is important lies in the differing threshold requirements to be met before the administrative provisions of a trust may be varied by the imposition of a scheme. It is unnecessary here to deal with the relevant test applicable in relation to non-charitable trusts.[12] In the case of a charitable trust, in Re the Lutheran Laypeople’s League of Australia Inc I said:[13]
There is considerable authority supporting the existence of an inherent power of this kind. If any additional comfort is sought, it may be found in the acknowledgement of the existence of the power in s 59B(4) of the Trustee Act 1936.
The authorities indicate that the inherent power is one to clarify, supplement or alter the machinery or means identified in a trust instrument by which the trust objects, or ends, are to be achieved. The Court does no more than complete “the trusts to carry out objects which ... have been indicated in sufficiently clear terms” by the settlor. That is, the Court “carries into effect the wishes and intentions of the founder of the charity; and where it sees that those intentions have not been carried into effect, it rectifies the existing administration of the charity for that purpose”. In In re Mason’s Orphanage and London and North Western Railway Co, Stirling J observed that historically schemes for the administration of a charitable trust –
... were made mainly in three classes of cases: (1.) Where the directions contained in the instrument of foundation were ambiguous, imperfect, or otherwise insufficient; (2.) Where the directions, though originally precise and complete, had become under altered circumstances unsuitable to carry out the general intention of the founder; and (3.) Where a scheme sanctioned by the Court itself had in like manner become unsuitable for that purpose.
On an application for an order imposing a scheme for the regulation of the administration of a charitable trust, the question is whether, having regard to the trust objects, it is expedient to regulate the administration of the trust in accordance with a proposed scheme. In answering this question two cardinal principles are controlling. First, the function of the Court is to enforce the charitable trust and secure the intended public benefit. Second, the Court has no authority to change the trust objects nor to alter by a scheme the benefit that such objects intend. Thus any scheme must operate within the ambit of the trust objects.
I have stated the test to be applied in terms of what is expedient relying upon the decision of Peter Gibson J in In Re J W Laing Trust. In Riddle v Riddle, Sir Owen Dixon said of the notion of expediency that it is “a criterion of the widest and most flexible kind.” In that same case, Williams J considered the ordinary natural grammatical meaning of the word expedient to be that of “advantageous”, “desirable”, and “suitable to the circumstances of the case”. Whilst Riddle v Riddle concerned the meaning of expedient as used in s 81(1) of the Trustee Act 1925 (NSW), no reason arises to think that in In Re J W Laing Trust Peter Gibson J used that word in any sense other than as it would be ordinarily understood.
[footnotes omitted]
[10] Supreme Court Act 1935 (SA), s 17. Attorney-General v The Governors of the Foundling Hospital (1793) 2 Ves 42 at 49; 30 ER 514 at 517 (Lord Commissioner Ashhurst).
[11] See, for example, In Re Royal Society’s Charitable Trusts [1956] Ch 87 at 91-92 (Vaisey J); Construction Industry Training Board v Attorney-General [1973] Ch 173 at 181 (Russell LJ); Re Ansett Australia Ltd (2006) 151 FCR 41 at [85] (Goldberg J).
[12] See, for example, Riddle v Riddle (1952) 85 CLR 202 at 228-229 (Fullagar J), 235 (Kitto J); Arakella Pty Ltd v Paton (2004) 60 NSWLR 334 at [96] (Austin J); Gonzales v Claridades (2003) 58 NSWLR 211 at [35]-[37] (Mason P).
[13] [2016] SASC 106 at [29]-[32].
I remain of this view.
An administrative scheme is a different creature to a cy-prés scheme. In Corish v Attorney-General’s Department of NSW Campbell J explained:[14]
There is a clear conceptual difference between a cy-prés scheme and an administrative scheme for a charitable trust. It is the difference between ends and means. A cy-prés scheme can be directed when it is impossible or impractical to carry out the objects of the trust in all the details the settlor stipulated. An administrative scheme supplements and/or clarifies any provisions the settlor has stipulated concerning the manner in which the objects of the trust are to be pursued, when practical circumstances show that the settlor’s stipulation (if any) of the means is inadequate or impractical.
[14] [2006] NSWSC 1219 at [9].
In In Re J W Laing Trust (Laing) the Court approved a scheme in the exercise of the inherent jurisdiction discharging a trustee from an obligation to distribute the trust capital and accumulated income within 10 years of the death of the settlor.[15] The trust was first created in 1922 with a gift of 15,000 shares worth £15,000 “the proceeds of which and the dividends thereon from time to time declared and paid … to be devoted to charitable purposes, it being understood that the capital and income is to be wholly distributed” within the settlor’s lifetime or within 10 years of his death. The settlor died in 1978. By the 1982 financial year the value of the trust assets had grown to be in excess of £24 million and in that year generated an income exceeding £1.2 million. Peter Gibson J held:[16]
In my judgment, the plaintiff has made out a very powerful case for the removal of the requirement as to distribution, which it seems to me to be inexpedient in the very altered circumstances of the charity since that requirement was laid down 60 years ago. I take particular account of the fact that this application is one that has the support of the Attorney-General. Although the plaintiff is not fettered by the express terms of the gift as to the charitable purposes for which the charity’s funds are to be applied, it is, in my view, proper for the plaintiff to wish to continue to support the causes which the settlor himself wished the charity to support from its inception, and which would suffer if that support was withdrawn as a consequence of the distribution of the charity’s assets. I have no hesitation in reaching the conclusion that the court should, in the exercise of its inherent jurisdiction approve a scheme under which the trustees for the time being of the charity will be discharged from the obligation to distribute the capital within 10 years if the death of the settlor. I shall discuss with counsel the precise form of order that is appropriate.
[15] [1984] Ch 143.
[16] In Re J W Laing Trust [1984] Ch 143 at 155.
It seems to me that if the inherent power to approve a scheme may be exercised to expand the lifespan of a charitable trust as occurred in Laing, then it may be exercised to contract the lifespan of a charitable trust provided that to do so is expedient in the relevant sense.
I accept the Public Trustee’s evidence that the Trust income is currently insufficient to meet the cost of the annual prize and is unlikely to do so in the future. In arriving at this conclusion I am influenced by the Attorney-General’s attitude to the application and, indeed, that of Mr Trnovsky. In the circumstances the settlor’s intention that the prize be awarded annually and the purpose of the Trust is no longer practically achievable. I am satisfied that it is expedient in the relevant sense to make an administrative scheme. In arriving at that conclusion I have had regard to the settlor’s original intentions and, in particular, the wish expressed in clause 7. For the reasons I have already given I am satisfied that the settlor hoped that the annual prize would be awarded for as long as possible. That has occurred.
Orders
I grant the application. I order that the trust known as the G.D. Butler Medal Trust the terms of which are set out in the trust deed dated 5 December 1961 be administered as if that deed included a clause 8 in the following terms:
Notwithstanding clause 7, if at any time the Trustee in its absolute discretion considers that the income of the trust is insufficient to maintain the award, then the Trustee shall pay the capital and any accumulated income to the School Committee on terms as stated in clause 7.
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