Public Trustee v Attorney General

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.