Ryder v The Attorney General in and for the State of New South Wales

[2004] NSWSC 1171

Reported Decision: 62 NSWLR 38

Supreme Court

CITATION:	Ryder v The Attorney General in and for the State of New South Wales [2004] NSWSC 1171
HEARING DATE(S):	25/11/04
JUDGMENT DATE:	25 November 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
DECISION:	Gift a valid charitable gift
CATCHWORDS:	CHARITIES [54]- General gift to charity to be nominated by Government- Valid charitable trust.
LEGISLATION CITED:	Charitable Trusts Act 1993, s 23
CASES CITED:	Attorney-General v Nichol (1809) 3 Merivale 687; 36 ER 263 Midford v Reynolds (1842) Phillips 185; 41 ER 602 Re Sutherland [1954] QSR 99 Schellenberger v Trustees, Executors & Agency Co Ltd (1952) 86 CLR 454
PARTIES :	Gordon Ryder and Adrianne Ryder (P) The Attorney General in and For the State of New South Wales (D)
FILE NUMBER(S):	SC 2213/04
COUNSEL:	M S Willott SC (P) N L Sharp (D1)
SOLICITORS:	Turnbull Hill Lawyers (P) I V Knight, Crown Solicitor (D1)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Thursday 25 November 2004

2213/04 – RYDER v THE ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: This case concerns the will made and published on 5 March 1991 of the late Alfred Frederick Jenson who died on 29 April 2002. The plaintiffs were granted probate of that will on 22 May 2003. The dispositive provisions of the will gave three legacies totalling $13,000 to various friends and the will then proceeds as follows:

"All the rest and residue of my property to charities nominated by the ‘Govt’.”

2 The residuary of the will after payment of legacies, testamentary expenses and costs is probably in the vicinity of $250,000.

3 The proceedings were originally fixed for hearing before me on 10 December, but, at a pre-trial hearing, it seemed clear that they could be dealt with shortly this morning because, although a number of issues can arise if one looks at this will with critical eyes, all of those problems go away if the question of whether the will creates a valid charitable trust is answered in the affirmative. Accordingly, I will deal with that question.

4 I have been assisted greatly in its resolution by the written and oral submissions of Mr Willmott SC for the trustees, and the oral submissions of Ms Sharpe for the Attorney General. Mr Willmott is in the traditional position of trustee where the person who would otherwise take the residuary of the estate (in this case Audrey Moore), does not wish to debate the matter of having to put both sides of the question. He has done that with his usual skill.

5 Ms Sharp says that six issues arise:

(1) Is there a general charitable gift?

(2) Does the will create a charitable trust?

(3) Does it mater that the person who nominated the charities is a person other than the trustee or donee?

(4) Is the indication of the selector, the “Govt”,
too vague?

(5) Should the matter be dealt with under s 13 of
the Charitable Trusts Act 1993?

(6) Whether the gift otherwise would succeed because of a general charitable intent and the prerogative of the Crown could be used to deploy the gift without the signed manual?

6 Dealing with the principal argument which, as I say, if decided in a certain way makes the rest of it unnecessary, the arguments against the gift are:

(a) There is a delegation of testamentary power which is impermissible unless there is a charitable gift. This argument dissolves if it is a charitable gift; see Re Sutherland [1954] QSR 99.

(b) The designation the “Govt” is defective because one does not know what the term “Govt” means. There is a total delegation of testamentary responsibility and, more importantly, according to Mr Willmott’s submission, there was no immediate creation of a trust, there was merely the power to make charitable payments without a binding trust.

(c) The will is a home-made will and one should not read the word "charities" in a technical sense but in the wider popular sense. The popular sense of the word would include benevolent purposes and the other purposes which are not strictly charitable under the statute of Elizabeth I.

7 As to (b), there have been a series of cases where property has been given to the Government where the courts have come to the view that there is no problem with the term. In Midford v Reynolds (1842) Phillips 185; 41 ER 602, the gift was:

“to the Government of Bengal, to be applied to charitable, beneficial and public works, at and in the city of Dacca in Bengal, for the exclusive benefit of the native inhabitants, in such manner as they and the Government might regard as most conducive to that end.”

8 The case indicates that it was referred to the Master to determine what was the “Government of Bengal” and the Master’s report was that it was the Governor General of India. The Lord Chancellor had no difficulty in finding that it was a valid charitable gift and that it was a gift to the Governor General of India for that charitable purpose. Similar decisions are Attorney-General v Nichol (1809) 3 Merivale 687; 36 ER 263 and Nightingale v Goulburn (1847) 5 Hare 484; 67 ER 1003.

9 This line of cases was mentioned without question by the three Justices of the High Court in Schellenberger v Trustees, Executors and Agency Co Ltd (1952) 86 CLR 454 at 459.

10 I have no problem with specifying the “Govt” as being an indication of Her Majesty the Queen and Her Majesty will act by the appropriate officer, being a State or Federal Minister. Obviously in this case that is the Attorney General for the State of New South Wales.

11 When one examines the gift it would seem to me, and I am reinforced in this by the cases to which I have referred, when a citizen asks Her Majesty or a high official of Her Majesty to use property which has been given to her in a particular way, then there is an obligation (though it might be hard to define precisely that obligation) to use the property in that way. Such an equitable obligation attached to property is to my mind a trust relationship and thus I consider that there is a trust involved, even though the word “trust” is not actually used.

12 (c) The third argument, that the word “charity” is used not in its technical sense but in its lay sense and would comprehend strictly non-charitable purposes, is a possibility. However, the only consequence would be that one would have to invoke s 23 of the Charitable Trusts Act, which replaces 37D of the Conveyancing Act of 1919, which states that where there is a mixed fund for charitable and non-charitable purposes one devotes the money for solely charitable purposes. Accordingly, in my view the gift is a valid charitable trust.

13 There was some interesting debate before me as to whether the signed manual and the Crown’s prerogative could be used. There is some suggestion in Dalpont’s book on Charitable Law in Australia and New Zealand p 257 that this is no longer available, but in my view that suggestion does not apply in New South Wales.

14 It is a matter then for the Attorney to work out how the property should be distributed. The present intention is to focus upon the fact that the testator died following Alzheimer’s Disease in a home at Toronto and to use the moneys for the benefit of the public who live in the Toronto region or in connection with Alzheimer’s Disease. It is a matter for him but it seems eminently specific.

15 Accordingly, I make declaration 1(a) in the summons.

16 I order that the costs of both parties on the trustee basis be paid out of the estate.

17 I vacate the hearing on 10 December 2004.

18 I am always anxious in these charity matters to keep costs to a minimum. I will formally reserve liberty to apply, but, hopefully, the executors and the Attorney can work out the destination of these funds with the least possible expense to the fund.

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Last Modified: 12/06/2004