Public Trustee v Attorney General & Ors [2005] NSWSC 1267
HEARING DATE(S):
In Chambers
JUDGMENT DATE :
7 December 2005
JUDGMENT OF:
Gzell J
DECISION:
Leave to bring proceedings granted. No misdescription. The Charitable Trusts Act 1993, s 9(1) inapplicable. Declaration that gifts did not lapse, the will contained gifts for charitable purposes and displayed a general charitable intention. Schemes cy-pres settled.
CATCHWORDS:
CHARITIES - Charitable Gifts and Trusts - Gift of residue by will to a charitable institution and two non-existent institutions, the Cancer Hospital in Sydney and the Tuberculosis Hospital in Sydney - Whether leave to bring the proceedings should be granted under the Charitable Trusts Act 1993, s 6(2A) - Whether the first gift a misdescription of the New South Wales State Cancer Council benefited by a legacy in an earlier will - Whether the will displayed a particular charitable intentions and the gifts lapsed or a general charitable intention to be administered by scheme cy-pres - Whether the Charitable Trust Act 1993, s 9(1) applies to gifts to non-existent institutions - Whether schemes cy-pres should be settled
Public Trustee - Plaintiff Attorney General of New South Wales - 1st Defendant Western Sydney Area Health Service - 2nd Defendant New South Wales Health Foundation - 3rd Defendant Northern Sydney and Central Coast Area Health Service - 4th Defendant Sydney South West Area Health Service - 6th Defendant
FILE NUMBER(S):
SC 3924/04
COUNSEL:
Mr P H Blackburn-Hart SC - Plaintiff Mr M Evans - 4th Defendant
SOLICITORS:
Teece, Hodgson & Ward Solicitors Shephard & Shephard Solicitors Legal Branch, NSW Department of Health Marsdens Law Group Patricia O'Farrell Solicitor
LOWER COURT JURISDICTION:
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
GZELL J
WEDNESDAY 7 DECEMBER 2005
3924/04 PUBLIC TRUSTEE v ATTORNEY GENERAL OF NEW SOUTH WALES & ORS
JUDGMENT
1 Madam Meh Tiap Rintoul, deceased, made her last will on 22 February 1989. She died on 24 August 1992 and letters of administration with the will annexed were granted to the plaintiff, the Public Trustee.
2 Madam Rintoul was a widow who was not in a de facto relationship at the time of her death. She was survived by her daughter, Margaret Langmaid who was the next of…
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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AGLC
Public Trustee v Attorney General [2005] NSWSC 1267
Case
[2005] NSWSC 1267
Decision Date
CaseChat Overview and Summary
Public Trustee, acting as the executor of the estate of the deceased, initiated proceedings against the Attorney General of New South Wales, seeking clarification and direction regarding the distribution of the deceased's estate. The dispute centred on the interpretation of the deceased's will, specifically concerning the residue of the estate, which was bequeathed to the Cancer Hospital in Sydney, the Tuberculosis Hospital in Sydney, and the New South Wales State Cancer Council. The primary issue was whether the gifts made to the two non-existent institutions should lapse or if a scheme cy-pres could be applied to redirect the gifts to charitable purposes.
The court considered whether the will exhibited a particular charitable intention, which would result in the gifts lapsing, or if it displayed a general charitable intention, allowing for the application of a scheme cy-pres to administer the gifts. Additionally, the court needed to determine if section 9(1) of the Charitable Trusts Act 1993 applied to gifts made to non-existent institutions and whether section 6(2A) of the same Act granted the Public Trustee leave to bring the proceedings. The court also examined whether the first gift to the New South Wales State Cancer Council was a misdescription of the beneficiary intended to be the New South Wales State Cancer Council.
The court found that the will did not manifest a particular charitable intention but instead exhibited a general charitable intention. Therefore, the gifts to the non-existent institutions could be administered under a scheme cy-pres. The court concluded that section 9(1) of the Charitable Trusts Act 1993 applied to gifts made to non-existent institutions, and section 6(2A) granted the Public Trustee leave to bring the proceedings. The court also determined that the first gift to the New South Wales State Cancer Council was not a misdescription of the intended beneficiary. Consequently, the court directed that a scheme cy-pres be settled to administer the gifts to the non-existent institutions and to distribute the residue of the estate in accordance with the general charitable intention expressed in the will.