Tasmanian Perpetual Trustees Ltd v Attorney-General - [2017] TASSC 32

[2017] TASSC 32

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmanian Perpetual Trustees Ltd v Attorney-General

[2017] TASSC 32

PARTIES: TASMANIAN PERPETUAL TRUSTEES LTD
v

HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

FILE NO:  831/2014
DELIVERED ON:  16 February 2017
DELIVERED AT:  Hobart
HEARING DATES:  25 February, 9 June 2015
JUDGMENT OF:  Wood J

CATCHWORDS:

Charities – Charitable gifts and trusts – When applied cy-prés – Generally – Statutory provisions – Inexpedient to carry out the original purposes of trust for charitable purposes – Scholarship awarded to top male student of high school to fund years 11 and 12 and two years of a university degree – Whether scheme to vary the terms and conditions of the scholarship should be approved – Whether the trustee should have additional power with respect to expenses to be paid and terms of the scholarship – Whether a scholarship to be awarded to the top male student is discriminatory and discordant with contemporary values – Meaning of inexpedient.

Aust Dig Charities [98]

Succession – Construction and effect of testamentary dispositions – Construction generally – Principles or rules of construction – Changing, transposing, omitting or supplying words – Supplying words – Whether missing words should be supplied to give trustee power to alter the terms and conditions of the scholarship.

Variation of Trusts Act 1994 (Tas), ss 5, 6.
Anti-Discrimination Act 1998 (Tas), s 23.
Fell v Fell (1922) 31 CLR 268; Butlin v Butlin (1966) 113 CLR 353, applied.
Re McElroy Trust [2003] 2 NZLR 289; Presbyterian Support Central [2009] NZHC 395, referred to.
Aust Dig Succession [1181]

REPRESENTATION:
Counsel:
             Applicant:  T Williams
             Respondent:  P Turner
Solicitors:
             Applicant:  Gunson Williams
             Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASSC 32
Number of paragraphs: 71

Serial No 32/2017
File No 831/2014

TASMANIAN PERPETUAL TRUSTEES LTD v HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT WOOD J

16 February 2017

The testator, Kenneth Edmund Chapple, was a dedicated teacher who taught technical subjects at St Helens High School in Tasmania. He retired in December 1984 after more than 20 years' service. He made his last will on 5 June 2003. He died on 25 March 2012 and probate of the will was granted in this Court on 25 May 2012 to the applicant, Tasmanian Perpetual Trustees Ltd.
Pursuant to his will, Mr Chapple established a trust fund called the "Kenneth Chapple Memorial Scholarship Trust Fund" and directed the applicant as his appointed executor and trustee to invest the residue of his estate and to accumulate the net income to be applied in perpetuity for the "promotion and encouragement of education" by establishing a scholarship. The will provided that the scholarship is to be "awarded annually" to the "top male student in year ten at St Helens High School". St Helens High School, now called St Helens District High School, is a co-educational government high school. It is located in a regional area of the north-east of Tasmania in the coastal town of St Helens.The will provided that the scholarship is to cover the cost of educational fees, books, accommodation and other educational expenses incurred in years 11 and 12, and the first two years of a university course. As a result, in any one year, the trust fund could be providing scholarships for up to four former students of St Helens District High School. The value of the investments of the trust fund is presently assessed as approximately $2,731,086 and accumulated income of $214,034 is held. The income from investments of the trust fund available for the scholarships is anticipated to be in the order of $110,000 per annum.
The trustee has brought an originating application seeking orders, directions, and answers to questions in respect of the will, more particularly the terms and conditions of the scholarship. It is argued that the Court should supply words to the will to give the trustee an explicit power to vary the existing terms and conditions such as to enable the following: for the scholarship to be extended beyond four years in an exceptional case; for the scholarship amount to be capped in advance, and for the trustee to impose terms and a limit on the type of expenses the scholarship covers. It is contended for the trustee that while the power to alter the terms and conditions is missing from the will, it can be inferred that a power to alter was intended and that these missing words should be supplied by the Court.
If the Court determines that words should not be supplied, the trustee seeks an order approving a scheme under the Variation of Trusts Act 1994 to give a power to the trustee to alter the terms and conditions of the scholarship. In addition, a variation of the trust is sought to allow the trustee to have resort to capital, as well as income, to fund the scholarship. There is a substantive question of whether there should be a variation of the purposes of the trust to allow girls, as well as boys, to be eligible as recipients of the scholarship. It is argued by the Attorney-General, the respondent, that the limitation of the scholarship to boys in the context of a co-educational school is discriminatory and warrants an order of variation.
In the event that variation orders are not made, answers are sought regarding the terms and conditions of the scholarship as the will stands, such as the type of education expenses that are to be met, whether accommodation expenses may include expenses associated with the student living at his parents' home, and whether the educational expenses extend to expenses incurred at any university anywhere in the world.
The issues can be clustered under three headings:
1 Are there missing words that should be added to the will?
2Should there be variations to the trust under s 5(2) of the Variation of Trusts Act because it has become inexpedient to carry out the original purposes?
3Is the will, which makes provision for the top male student, discriminatory and inexpedient?
The issues concern cl 4 of the will which establishes the trust fund and its purpose, and terms, conditions and regulations of the scholarship:
"4I give the residue of my estate to my Trustee to stand possessed of the balance then remaining which I would like called THE KENNETH CHAPPLE MEMORIAL SCHOLARSHIP TRUST FUND but which is hereafter referred to as my Trust Fund upon trust to invest the same in any investments permitted by law for the investment of trust funds with power at any time and from time to time to vary such investments for others of a like nature and to get in and accumulate the net income therefrom upon the following trusts:-
4.1 my Trustee shall out of the income of my Trust Fund pay all costs and expenses of or incidental to the management of the Trust Fund and the income thereof or the execution of any of the trusts or power under this my Will;
4.2 subject as above and hereinafter provided the said fund shall be held by my Trustee and the income thereof shall be applied in perpetuity for the promotion and encouragement of education by establishing and maintaining a scholarship to be called THE KENNETH CHAPPLE MEMORIAL SCHOLARSHIP (hereinafter referred to as the Scholarship) such scholarship to be awarded to the top male student of the year ten at St Helens High School such scholarship to be held and enjoyed subject to such terms conditions and regulations as are hereinafter provided and/or altered terms and conditions and regulations as may from time to time be hereinafter mentioned:-
4.2.1the scholarship shall be awarded annually and shall be held and enjoyed for a period not exceeding four years;
4.2.2the selection of the scholarship is to be awarded on the basis of scholastic achievement;
4.2.3the scholarship is to be awarded on the basis of scholastic achievement;
4.2.4the scholarship is to cover the cost of educational fees books accommodation and other education expenses incurred in years eleven and twelve and the first two years of any University course as selected by the scholarship winner;
4.2.5the payment of these expenses or reimbursement of costs incurred by the scholarship winners shall be made at the discretion of my Trustee but preferable at the end of each school term or University semester;
4.2.6if the scholarship winner should fail to achieve a pass mark in more than half of his subjects in any one school term or University semester then my Trustee may at any time or from time to time either partially or wholly revoke the said scholarship;
4.2.7if at any time there shall not be any year ten male student at the St Helens High School who in the opinion of the Principal at that time does not possess sufficient education merit for the scholarship then no scholarship shall be awarded in that year;
4.2.8any residue of the said income remaining after satisfying the purpose of aforesaid may be accumulated and added to the capital of the said fund and be dealt with as part of such capital or used by my Trustee as hereinbefore mentioned with power for my Trustee at any time and from time to time should the income of the said fund prove insufficient to meet the costs of the said scholarship to apply the accumulation of income of my Trust Fund for the purposes hereinafter stated;
4.2.9in establishing the abovementioned scholarship I wish to emphasis my lifelong interest in education and my desire to see young men have the opportunity to obtain early in life as much educational help as may enable them to pursue a career in their chosen field should they so desire."

Missing words

It is contended by the trustee that there are words missing from the will and that it is necessary that they be supplied by the Court. The words are said to be missing from cl 4.2, set out above, in its overarching terms before the reference to cl 4.2.1.
It is contended by the trustee that the words "hereinafter mentioned" should be deleted and the words "determined by my trustee" substituted. Clause 4.2 governs the sub-clauses that follow, 4.2.1 and following. The missing words, if supplied by the Court, would enable the "terms conditions and regulations" of the scholarship set out in the sub-clauses to be altered by the trustee. If these words are supplied, then the terms and conditions of the scholarship could be altered by the trustee at its discretion.
If the argument succeeds, the words said to be missing would only qualify the terms, conditions and regulations of the holding of the scholarship which follow cl 4.2. It should be noted that the terms of cl 4.1 and the balance of cl 4.2 would be unaffected by the additional words and would remain unalterable. Noting the content of those sub-clauses, the missing words would not give the trustee a discretion to allow resort to the capital to fund the scholarship or allow the award of a scholarship to a female student.
It is acknowledged by the trustee that cl 4.2.9 was not intended to be an alterable condition. Clause 4.2.9 does not qualify as a term, condition or regulation of the holding of the scholarship. The scholarship would not be held and enjoyed subject to this sub-clause. Rather, cl 4.2.9 is a guiding or overarching statement of intention to assist in governing the interpretation and management of the trust. Its placement under cl 4.2, grouped with terms, conditions and regulations which the scholarship is to be subject to, is not appropriate. It should have an elevated status such as cls 4.1 and 4.2, and would be correctly placed as cl 4.3. Of course, this is the sort of drafting error that may occur once a will provides for sub-clauses, and sub-clauses of sub-clauses. If the missing words are to be supplied it should be made clear that cl 4.2.9 is excluded from the discretion to alter.
The task of ascertaining whether missing words should be supplied is governed by well-settled principles of interpretation of wills. They are set out in the High Court decision of Fell v Fell (1922) 31 CLR 268 at 273-275 per Isaacs J. Before words may be supplied, the words must be a necessary inference from the language of the will and plainly implied: see the fifth and sixth principle set out in Fell at 274.
In Butlin v Butlin (1966) 113 CLR 353, Barwick CJ, at 357, stated:
"Two questions arise: first, is it certain that the testator intended to dispose of his other assets in that event, a disposition which by oversight or mischance has not found its way into the express terms of his will; and, second, if so, has the testator in what he has said in his will given such an indication of what he intended but omitted that that intention can be inferred with convincing certainty."
As I noted in Tasmanian Perpetual Trustees Ltd v Ramritu [2015] TASSC 7, the principles derived from Butlin permit the court to supply "missing words" if the following threshold requirements are met:
1 Is it certain that a mistake was made and there has been an omission?
2 If yes, can the intention of the testator be inferred with "convincing certainty"?
In considering these questions and in having regard to the terms of the will to see if there is something in the four corners of the will which requires the implication, I must have regard not just to the effect of cl 4.2 but to the "will taken together" (Fell per Isaacs J, drawn from the fourth and fifth principle at 274).
There is force in the trustee's submission that the words of cl 4.2 do not make sense and it appears on its face that there are words missing. This can be seen from the words which introduce the terms, conditions and regulations which follow:
"… such scholarship to be held and enjoyed subject to such terms conditions and regulations as are hereinafter provided and/or altered terms and conditions and regulations as may from time to time be hereinafter mentioned:- …".
The "terms conditions and regulations" "hereinafter provided" are the only terms, conditions and regulations of the scholarship and presumably they must be what can be altered, but there is no enabling provision or mechanism to allow that to be done. The reference to "altered terms and conditions and regulations" clearly conveys that alterations were contemplated by the testator. The words "hereinafter mentioned" suggest that any altered terms, conditions and regulations are those that are "hereinafter mentioned". There is a compelling inference that the testator intended that conditions and terms of the scholarship set out in the sub-clauses may be altered. It is argued by the trustee that so much is clear, but the testator failed to provide any mechanism by which the alterations may be made. It is clear at least, as it is the only reasonable possibility, that it was intended by the testator that the trustee would be the individual who would have that power.
It can also be seen from the grammatical structure of cl 4.2 that words are missing: "and/or altered terms and conditions and regulations as may from time to time be hereinafter mentioned". To make sense of these words it must be that the words "hereinafter mentioned" refer to any altered terms, conditions and regulations. The phrase "may from time to time" must also relate to any alterations, as made from time to time. Clearly, there is an omission and the sub-clause is incomplete. The question is what words are missing from that sub-clause. The missing words could be a power of alteration that were omitted in error. That would be reasonable and would make sense, but the issue is whether that is clear with "convincing certainty".
It was submitted by the trustee that the prescriptive nature of the terms, conditions and regulations suggests that flexibility was countenanced. I can see that, on the one hand, the conditions of the scholarship are so detailed that it would make sense from the testator's perspective to allow a discretion. I also note that there is nothing about the words elsewhere in the will that suggests that the testator's intention was that there was to be no power to alter the terms and conditions. However, I see the prescriptive nature of the terms as a neutral consideration. It is feasible that the terms and conditions are prescriptive because they were meant to direct the trustee, absent a discretion. Furthermore, there is provision for the trustee to exercise a discretion in some of the sub-clauses (see for example the discretion in cls 4.2.5 and 4.2.6). This may suggest that an overriding discretion or flexibility was not contemplated, other than as specifically provided for in those sub-clauses.
The trustee's submissions noted that the questions that have been raised about the will in the originating application, and the difficulties for the trustee in administering the scholarship would be catered for by adding words which give the trustee a power of alteration. It was submitted that the testator would have envisaged that issues would arise and that the trustee would need that power. It is submitted that the questions set out below show the problems that arise and why the testator envisaged a power of alteration would be needed:
"c) in particular can the terms be varied so that the length of the scholarship can be extended beyond 4 years when through lack of financial support a student may not be able to complete his degree or reach his full potential;
…
e) in particular can the Trustee provide for a term which allows the Trustee to set the amount of or cap the scholarship in advance for any year;
f) in particular can the Trustee provide terms that impose a limit in amount and type of the expenses the scholarship covers;
g) in particular can the Trustee provide a term (after taking into account the funding of existing scholarships and future scholarships that the income is likely to be insufficient in any year to fund a full scholarship) that even if there is a deserving student, the Trustee need not provide a scholarship for that year or limit the amount provided over the term of the scholarship awarded …".
As noted, the question to be considered is whether it is plain that the sub-clause omitted words allocating the trustee a power to alter the conditions of the scholarship. I must have regard to the terms of the will in its entirety. Clause 4.2.6 warrants close consideration. It deals with the contingency of the scholarship winner failing to achieve a pass mark in more than half of his subjects in any one school term or university semester. This contingency could arise on multiple occasions during the currency of the scholarship. It is highly significant because this sub-clause provides the trustee with a discretion to partially or wholly revoke the scholarship at any time or from time to time. This sub-clause did not attract singular attention in the submissions but it strikes me, with the benefit of reflection, as having significance in light of the reference to altered terms and conditions in cl 4.2. The will provides "and/or altered terms and conditions as may from time to time …". Those words have particular relevance in the context of cl 4.2.6. The scholarship, having been granted on the condition that it was to be enjoyed for a period not exceeding four years, may then be altered by the trustee so that it is enjoyed for less than four years. In such a contingency a scholarship, having been granted subject to cl 4.2.1, would be enjoyed for a time, but later the same scholarship would be subject to an altered condition. The operation of cl 4.2.6 gives meaning to the word "altered" as it appears in the phrase under scrutiny: "and/or altered terms and conditions and regulations as may from time to time be hereinafter mentioned".
Having regard to the potential operation of cl 4.2.6, the words under consideration in cl 4.2 make sense. The altered terms and conditions may take effect from time to time; the scholarship may have been subject to a condition that it would be held for four years and then later be revoked partially or wholly. Furthermore, the altered term and condition is "hereinafter mentioned"; it is mentioned in cl 4.2.6.

As mentioned above, any inference that some of the sub-clauses are alterable is confined to cls 4.2.1-4.2.8. The inference urged by the trustee is a reasonable and sensible inference, but it is not the only inference. The terms of the will do not reflect an intention to grant an overriding discretion with convincing certainty. I decline to supply the missing words. The will can be sensibly construed in such a way that the only power to alter the conditions of the scholarship is that set out in the terms of the will, and that a more extensive power to alter is not missing.

Should variations to the trust be approved because it has become inexpedient to carry out the original purposes?

The trustee invokes the Variation of Trusts Act, s 5(2), and contends that the Court should approve a variation of the trust because it has become inexpedient to carry out the original purposes.
There have been many questions posed in the originating application for determination about the administration of the scholarship. These questions anticipate contingencies that are not catered for by the terms, conditions and regulations in the will: cls 4.2.1-4.2.8. Broadly speaking, they can be categorised as follows:
"1Does the Trustee have a power to alter the provisions in clauses 4.2.1 to 4.2.8 ?
2Can scholarships be extended beyond the four (4) year period?
…
4To what expenses does the scholarship apply?
5Is the Trustee required to fund all expenses of the scholarship winner attending whatever higher education he chooses or does the Trustee have some power to cap or limit the expenditure."
In addition, there are further questions which concern other clauses such as whether there should be resort to capital to fund the scholarship. The questions identify the areas of uncertainty surrounding the administration of the scholarship, and it is contended that that uncertainty demonstrates the need for a variation that provides the trustee with a discretion to depart from the terms, conditions and regulations. If it is determined that a variation should be made providing the trustee with a general discretion, it is conceded by the trustee that the questions posed in the originating application need not be answered in their entirety.
It is necessary to begin with a consideration of the Variation of Trusts Act and the limits of the Court's power to vary a trust.

Variation of Trusts Act

Section 6 of the Variation of Trusts Act allows the Court to approve a scheme varying the purposes for which property may be applied under a charitable trust. The scheme sought to be approved is to allow a variation of the trust to provide the trustee with an overriding discretion to amend the terms, conditions and regulations of the scholarship (cls 4.2.1-4.2.8) in the same terms as the "missing words" set out at [9] namely: "and/or altered terms and conditions and regulations as may from time to time be determined by my trustee". An additional question is also raised as to whether the trustee should have a power to resort to capital to fund the scholarship.
The Court may only approve the variation if the requirements of ss 5 and 6 of the Act have been fulfilled. The Attorney-General is supportive of the trustee's position with respect to the need for a variation, and contends that a variation to allow the trustee to alter the mechanical provisions in cl 4.2.1 and following is appropriate. The Attorney-General did not advance argument as to the approach that ought to be taken by the Court and whether the will should be construed so that words are to be supplied or a variation should be approved under the Act. As in every case, the Court may only approve the scheme if satisfied of the statutory criteria, and that the circumstances justify the variation with reference to any countervailing factors.
Section 5(2) provides an application may be made for a variation of the original purposes of a charitable trust, "If it has become impossible, impracticable or inexpedient to carry out the original purposes … in whole or in part, …". Subsection (3) provides for specific circumstances in (a)-(e) when an application may be made "without limiting the generality of subsection (2)". The trustee does not rely on any of those specific circumstances set out in the subsection, but I have borne them in mind as illustrative of the over-arching requirement in subs (2) of "impossible, impracticable or inexpedient".
If the Court is satisfied that circumstances exist justifying the variation of the purposes for which property may be applied under a charitable trust, the Court may approve of a scheme varying the purposes: s 6(1). However, if such circumstances exist, the Court must not approve of a scheme unless "of opinion that the scheme accords as far as reasonably practicable with the spirit of the original gift": s 6(3).
The criteria which must be satisfied in this case are :
1 the purposes of the trust must be charitable;
2it must have become "impossible, impracticable or inexpedient to carry out the original purposes" of the trust "in whole or in part";
3the proposed scheme must accord as far as reasonably practicable with the spirit of the original gift.
The purpose of the Kenneth Chapple Memorial Scholarship Trust Fund is charitable. Broadly, its purpose is the "promotion and encouragement of education". Trusts for the "advancement of education" are one of the well-recognised classes of charitable purposes: Commissioners of Income Tax v Pemsel [1891] AC 531 at 583 per Lord Macnaghten, and Swinburne v Federal Commissioner of Taxation (1920) 27 CLR 377 per Isaacs, Gavan Duffy, Rich and Starke JJ at 384, with reference to the Preamble to the Elizabethan Statute. Gifts for the education of a limited class of persons forming a section of the community are charitable: Re Compton [1945] Ch 123, at 136; Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297, per Lord Simonds at 305-306; The Public Trustee v Young (1980) 23 SASR 239 at 243-244. The fact that the trust in this instance is only for the benefit of male students of St Helens District High School does not mean that the trust is not charitable.
The trustee relies exclusively upon the criterion of "inexpedient" in s 5(2) as having application to this case. The word "inexpedient" in this context has its ordinary meaning of "disadvantageous", "undesirable" or "not suitable to the circumstances of the case": Riddle v Riddle (1952) 85 CLR 202, per Williams J at 222; Re McElroy Trust [2003] 2 NZLR 289 at [14] employing the synonyms "unsuitable, inadvisable or inapt"; Knowles v Attorney-General [2016] TASSC 25 at [14]-[17]. The judgment of the Court of Appeal in Re McElroy Trust at [14] is of assistance in identifying the effect of expanding the threshold test, which in most jurisdictions is confined to "impossible and impracticable", by adding the word "inexpedient":
"Parliament's wish to expand the concepts of impossibility and impracticability should not be inhibited by too narrow an interpretation of the word 'inexpedient'. Clearly Parliament wished to give the Courts power to approve a scheme of variation in circumstances beyond those where the original purpose could no longer be carried out. The concept of inexpediency introduced a value judgment rather than simply an assessment of feasibility. It may remain possible and practicable to carry out the original purpose but it may have become inexpedient to do so….It may be worth repeating here that the question is not whether the scheme carries out the purposes of the trust better. Rather it is whether it is now inexpedient to carry them out."
Counsel for the trustee helpfully drew to my attention the following words of s 5(2): "If it has become impossible, impracticable or inexpedient to carry out the original purposes of a trust for charitable purposes in whole or in part, …". He pointed out that some of the terms and conditions of the scholarship may be said to be machinery provisions rather than provisions concerning the purposes of the trust, in which case they would fall outside the ambit of the Act.
However, the common law regarding cy-prés schemes has long recognised the concept of subsidiary purposes and that conditions attaching to a gift are subject to the cy-prés doctrine. In The Law of Charitable Trusts in Australia (1983), F M Bradshaw (at 134) noted two of the reasons for impossibility or impracticability under the doctrine: "the main object of a charitable gift may be practicable, but its subsidiary object fails; there may be impracticable conditions attached to an otherwise practicable gift", with a footnote to the case of Re Robinson; Wright v Tugwell [1923] 2 Ch 332. That case involved a charitable endowment for a proposed evangelical church on the basis that certain conditions were carried out, including that a black gown be worn in the pulpit. The wearing of a black gown had become out-dated and it was considered that it would be contrary to the wishes of the congregation. The wearing of the black gown in the pulpit was characterised as a purpose which was subsidiary to the main purpose of the bequest (at 336). This language of dominant and subsidiary purposes is reflected in other cases and it can be seen that the subsidiary parts of a charitable trust, involving the means by which the wider charitable intention is fulfilled, are subject to the doctrine: Attorney-General (NSW) v Perpetual Trustee Co (Ltd) (1940) 63 CLR 209. In my view, the scope of the general law and the meaning it attaches to "purposes" informs the scope of s 5(2), and in particular the meaning of the words "original purposes" of a trust. It is evident, noting the language of the section, the use of the plural "purposes", and the phrase "whole or in part", that the section is not confined to the wider charitable object.
Counsel for the trustee also highlighted other words of the section, "If it has become" preceding the words "impossible, impracticable or inexpedient …". It was submitted that these words appear to impose a requirement that there must have been a change in circumstances which has brought about the impossibility, impracticality or inexpediency of the original purposes. It is pointed out that arguably the section is not concerned with trusts that fail at the outset and is confined to valid charitable trusts that "become" impossible, impracticable or inexpedient after they have commenced operation. There was no authority cited for such an interpretation and the section, or its equivalent in other jurisdictions, has been applied to cases of "initial failure". As an aside, it would mean that the section was more confined than the cy-prés doctrine at general law which underpins the legislation, and which does not constrain the courts by a requirement for changed circumstances. There is a compelling indication in the terms of s 5 that it applies to cases of initial failure or impossibility. Section 5(4) provides that s 5 does not affect the requirement for a general charitable intention in any case where such an intention is a condition before the purposes of a charitable trust may be varied. The requirement for a general charitable intention at general law arises in cases of initial impossibility. It is well established that the doctrine may apply to gifts where it is impossible or impracticable from the outset to carry out the trust at the testator's death. In such cases the general law requires that the terms and subject matter of the gift evidence a general charitable intention. Having referred to the general law requirement, preserved under the Act, I note that the requirement does not arise in this case. It is not a case of impossibility or impracticability but inexpediency. If there was such a requirement and it was necessary to find a general charitable intention, I would find that it would be clearly established by reference to the words of the will. Clause 6 provides:
"If at my death any charitable body referred to in this my Will has ceased to exist or has amalgamated with another charity or changed its name the gift to it shall not fail but my Trustee shall pay it to the charitable organisation which they consider most nearly fulfils the objects that I intend to benefit and I direct that the receipt of the treasurer for the time being of the said charity or the charity substituted by my Trustee shall be a sufficient discharge to my Trustee."
Further, returning to the argument raised, it is worth observing that the language of the section is not inconsistent with a conclusion that a change of circumstances is not required. As emphasised above, the section may apply to any of the original purposes of a charitable trust. The natural meaning of "if it has become" would apply to a purpose which is free from difficulty and valid when viewed in isolation, but which fails at the outset due to a condition of the gift which cannot be carried out.
The issues that remain are essentially whether it is "inexpedient" to carry out the original purposes of the trust involving a consideration of the difficulties faced by the trustee and whether the proposed scheme accords as far as reasonably practicable with the spirit of the original gift.

Difficulties for the trustee

The scholarship period

These proceedings have highlighted the significant number of questions that may cause the trustee difficulty in administering the trust. One of the potential difficulties arises from the period of the scholarship. Scholarships are restricted to a period of four years covering years 11 and 12 and the first two years of a university course. One of the difficulties which may arise is that a student with limited means may be unable to complete the final years of a university degree without further financial assistance from the trust. The trust fund may have provided the student with a flying start, but nonetheless the purpose of the scholarship for young men to have the "opportunity to obtain early in life as much educational help as may enable them to pursue a career in their chosen field should they so desire" would be defeated. It may be that the student would be unable to pursue a career in their chosen field because they were unable to complete their university degree.
A sensible approach would be for the trustee to be able to assess the education expenses for the period to which the student is entitled under the scholarship and then mete out those expenses over whatever number of years was ahead of the student to enable them to complete their degree. This would mean that four years of expenses could be assessed at the beginning of the scholarship period and then paid out over six or seven years, as the case may be. That would provide adequate support for most students and indeed represent a very generous scholarship. However, it seems that the terms and conditions of the scholarship would not presently be sufficiently flexible to allow payment for longer than four years on a pro-rata basis. The further and more fundamental difficulty remains that there may be a worthy and gifted student who, due to their impoverished circumstances, would need all their education expenses to be funded and, if that was not the case, they would be unable to complete their degree.
There is merit in providing a discretion to allow, in an exceptional case, payment of expenses of a scholarship winner's undergraduate university degree in full. I consider it inexpedient that the trustee should not have that discretion. There is the real potential for a situation to arise where a student, having undertaken two funded years of their degree, would be unable to complete the final year or years and be "unable to pursue a career in their chosen field". This would defeat the purpose of the trust. I expect that in the usual course, this discretion would not be required. I note my earlier observation that funding two years of a degree and meting out that funding for the duration of the degree would represent a generous scholarship and be sufficient in the usual course to enable the student to pursue their chosen career. I shall hear from counsel further as to the wording of the variation. It is noted that a variation in terms of a general discretion to alter the terms and conditions of the scholarship at [9] is sought by the trustee. As an alternative, a discretion in specific terms catering for the exceptional case may be appropriate and it could be in the following terms:
"My trustee is to have a discretion to fund what it considers a deserving student after the two year period of a university degree up to and including the finalisation of the student's undergraduate university degree such discretion to apply where my trustee considers that without such funding such student would, because of their financial circumstances, be unable to pursue a career in their chosen field."
There will be an opportunity for counsel to make submissions as to this specific discretion and also the desirability of a specific discretion for the trustee to enable payment of four years of educational expenses on a pro-rata basis until completion of an undergraduate degree.

A discretion to refuse funding of any university or college

Clause 4.2.4 allows the scholarship to cover the cost of education expenses of "any university course" as selected by the scholarship winner. It potentially extends to any university course interstate, regardless of cost, and indeed a course anywhere in the world as selected by the winner. Information was provided to the Court of the costs of a student studying interstate. For instance, the cost associated with an undergraduate degree at Monash University range from $22,000-$50,000 per annum. The scholarship could not be maintained if the cost of attending university interstate or overseas was funded regularly by the trust. In any event, I observe that undertaking a degree at an interstate or overseas university may represent an extravagance and be superfluous to "educational help" enabling the student to pursue a career in his chosen field of study as provided for in cl 4.2.9. Similarly, the cost of attending an independent college for years 11 and 12, rather than a government college, is beyond the purpose of the trust. The purpose of the trust is to provide "educational help" as "may enable them to pursue a career in their chosen field". It is contrary to the tenor of the will to allow excessive or non-essential spending on educational expenses: the trustee is directed to fund the scholarship from income, and the income is to be applied in perpetuity: cl 4.2. The scholarship is not meant to fund the expenses of a particular choice of university beyond what is needed to enable a pathway to a chosen career. To fund attendance at a university interstate or overseas merely because it is the winner's preference, perhaps because the university is renowned and may provide a competitive edge, is a privilege and an excess beyond the intention of the testator. Having said that, there may be instances where the student's chosen career path would require attendance at an interstate university or perhaps even a university overseas. The scope of cl 4.2.4 allows payment of expenses associated with that attendance. The difficulty for the trustee is that it does not have an explicit discretion to refuse funding of the educational expenses of a particular university course where the expenses or part of the expenses are superfluous to the purpose of the scholarship, or to refuse to fund private education for years 11 and 12. It promotes the purpose of the trust for the trustee to have such a discretion, and the absence of such a discretion satisfies the statutory criterion of "inexpedient".

Timing and amount of payment

The payment and reimbursement of education expenses is presently uncapped. Clause 4.2.5 provides discretion as to the timing of payment of expenses incurred or reimbursement, but not as to fixing a limit on the amount to be paid. It is submitted for the trustee that proper budgeting is made almost impossible in these circumstances. It was argued that it may be preferable once the winner is selected for the trustee to assess the anticipated reasonable educational expenses, and fix an amount which is then paid on such basis as is most appropriate. I accept that it is inexpedient for the trustee not to be able to adopt that approach. In pointing out the difficulties of budgeting, it was noted that the funding requirements from year to year may differ significantly. Since 2013, years 11 and 12 are offered on the same campus as St Helens District High School, at the college referred to as Break O' Day Community College. Students might choose to attend college there or continue with years 11 and 12 studies at a college in Launceston or Hobart. Conceivably, there may be years when expenses are at a minimum because scholarship winners are attending Break O' Day Community College for years 11 and 12, and the students who have reached their university studies are undertaking a relatively inexpensive degree at the Launceston or Hobart campus of the University of Tasmania. Yet, in another year, there may be students in years 11 and 12 attending a Launceston or Hobart college with accommodation expenses, and undertaking university degrees with a high level of expenses. It was also pointed out that another variable from year to year is that there may be different levels of HECS fees. However, I observe that as for such fees, it may be that the trust ought not have to pay those fees at all as they could be met by the scholarship winner, just as under present arrangements many other university graduates pay those fees themselves once they have commenced employment and are earning an income which has reached a particular level. It seems that according to the present terms of the scholarship, payment of these fees need not be regarded by the trustee as "educational fees … incurred" by the student, or indeed, as "educational help" enabling the student to pursue their chosen career. The discussion on this point serves to illustrate that an explicit discretion for the trustee to cap the amount of the scholarship in an individual case or limit particular expenses would be useful and would save costs of court proceedings to determine questions as they may arise.

A discretion to assess and fix a limit on education expenses in advance is desirable and it is inexpedient that the trustee would not have such a discretion and also a discretion to limit the type of expenses the scholarship covers. Further, it would be inexpedient for the trustee not to have a discretion to award a global amount in each individual case from year to year. During submissions a discretion in the following terms was sought: "Each individual scholarship shall be subject to the Trustee's discretion either at the outset of the scholarship or during it to determine the length of the scholarship, the amount of expenses to be funded and the timing of funding." Again, I shall hear from counsel further as to the wording of the variation sought to be approved. It may be noted that such a discretion to cap the expenses funded by the scholarship may be sufficient to cater for the scenario discussed above, that of a scholarship winner selecting a university or college which represents an extravagant expense superfluous to the needs of the student.

Resort to capital

Another question posed by the trustee for the Court's determination is whether the trustee may have resort to capital, as well as trust income, to fund scholarships if the expenses of the scholarships in any given year exceed the income earned. It is clear from cl 4.2 that the intention of the testator was that only income would be applied for the purpose of funding scholarships. It was submitted that ideally the trustee would use its power of accumulation to ensure that the funds kept pace with inflation and retained the capacity to give effect to the testator's intentions.
At this stage, it is far from clear that the net trust income is inadequate to fund the scholarships year to year, and also to produce ongoing accumulation sufficient to maintain real value against inflation. The information provided to the Court by the trustee was that the net trust income for the financial year ending 30 June 2014 was $147,787, including capital gains of $16,841, and imputation credits of $34,639. For the financial year ending 30 June 2015 the gross trust income was approximately $150,580. The trustee receives remuneration of 5% (plus GST) of income it collects. At the end of each five-year period, the trustee is also entitled to a commission of one quarter of 1% (plus GST) of the value of the trust capital. Based on the figures provided of the present annual income, it is reasonable to suppose that a net income of $110,000 per annum, as a conservative figure, will be maintained in the foreseeable future. Therefore, it can be supposed that on an annual basis that amount will be available to expend on scholarships, without allowing for any accumulated income. That represents a very generous amount for four scholarships and should be more than will be required in each year. It is reasonable to anticipate that that sum would rarely be exceeded for, at least, many years to come. Furthermore, as at June 2015 there was already a reserve of accumulated income of approximately $214,000, some of which can be applied in any year if the annual trust income is not sufficient. In this regard, it needs to be taken into account that the trustee has foreshadowed that some of this reserve may be expended to fund, retrospectively, a student who would have been eligible for a scholarship in past years since the establishment of the trust fund. Still, having regard to income that has been accumulated already, if in any given year, a very expensive course was funded there would still be no need to resort to capital. Further, it is anticipated that in future years there will generally be further accumulation of income. In some years there will be a substantial sum accumulated. Of course, the income to be derived from investments is far from certain, and is subject to the vagaries of the share market, and there may be a period of time when the income is diminished due to an event such as a global financial crisis. Still, it is anticipated that the amount available to expend on scholarships per annum will grow, and in time, may be substantially more than the amount presently available of $110,000. With prudent management the income available for scholarships may keep ahead of inflation indefinitely.
It is premature to consider the contingency that the trust income is inadequate to cover the scholarship expenses. If the contingency occurs, it can be considered then. It is not impossible, impracticable or inexpedient to carry out the original purposes of the trust without a discretion for the trustee to resort to capital.

Post-graduate study

The originating application seeks a determination as to whether limiting the scholarship to two years of a university degree is inexpedient and, if it is, as has been determined, proposes that the Court may vary the purposes by adding the following provision:
"My trustee is to have a discretion to fund what it considers a deserving student after the two year period up to and including the finalisation of the student's university degree (including Honours or a PHD) such discretion to apply where my trustee considers that without such funding such student may because of lack of finances be unable to pursue a career in their chosen field."
The submissions I received were confined to completion of an undergraduate degree and the contingency that it may be unable to be completed. I did not receive submissions addressing the expediency of extending funding to an Honours year or post-graduate study. I observe that for most graduates, it is unlikely that their chosen career would be beyond reach because they had not undertaken post-graduate study. A post-graduate qualification may be desirable, but it is unlikely to be essential. If it was essential the student would at least have obtained an undergraduate degree equipping them for work of some kind and a capacity to earn an income to fund post-graduate study. In the absence of submissions on this point, I am not satisfied that it would be inexpedient for the scholarship to continue to be confined to undergraduate study. However, in the interests of saving time and costs associated with a further application, I will grant an opportunity for the parties to be heard on this point.

Spirit of the gift

A variation or variations which allows the trustee a discretion in certain respects as identified above accord as far as is reasonably practicable with the spirit of the original gift: s 6(3). As discussed, a variation should be approved to avoid the main objectives of the trust being thwarted and to give effect to the testator's original intentions.
A discretion to extend the length of the scholarship for a student in a particular case ensures that the overarching objective of the trust in establishing a scholarship is fulfilled. It would allow for "educational help" to be provided as "may enable the winner of the scholarship to pursue a career in their chosen field" where otherwise, in that individual case, that objective would fail. A variation to provide a discretion to limit the educational expenses paid, to limit the type of expenses, and to assess and cap expenses in advance would avoid excessive expenditure that is beyond the overarching objective of the scholarship. Such expenditure is also contrary to the evident wishes of the testator that the income should be applied in perpetuity. Prudent management and avoidance of excess are purposes which are implicit in the terms of the will. Once the parties have made further submissions as to the variations which are appropriate, the Court will be in a position to approve a variation to the purposes of the trust. In considering the precise terms which should be approved, I shall return to and be guided by the requirement in s 6(3).

Should the trust be varied so that the scholarship is open to female students as well as male students?

The trustee seeks the Court's guidance on this issue of gender, raising the issue out of concern to ensure the trust is not discriminatory. The trustee's position is neutral, leaving the Attorney-General to advance argument on the issue.
It is argued on behalf of the Attorney-General that the criterion of "expediency", enabling this Court to make a value judgment, allows consideration of whether the purposes of a charitable trust are at variance with societal values. It was submitted that the purpose of the trust, to provide scholarships for male students only, is jarringly discordant with contemporary values. A reasonable, informed member of society would consider the present purpose of the trust to be anachronistic at best. No reasonable and informed member of society would consider such a purpose to be proper or sensible. Regardless of the motivation of the testator, it is submitted that he has created a patently discriminatory charitable trust. It was contended that there should be a variation made to the original purpose referred to in the will so that the scholarship is open to female students as well as male students. Thus, the scholarship winner should be the top student in year 10, regardless of gender.
It is necessary to return to the meaning of "inexpedient" to ascertain whether there is guidance provided about the making of a value judgment and factors which may be considered.
In the passage from Re McElroy quoted above at [34] it was made plain that the introduction of the concept of inexpediency, expanding the power of the court and allowing a value judgment to be made, meant that even if it was possible and practicable to carry out the original purpose, it may have become inexpedient to do so. The same passage also recognises that the power to approve a scheme of variation is constrained by the concept of inexpediency. As stated: "the question is not whether the scheme carries out the purposes of the trust better. Rather it is whether it is now inexpedient to carry them out." (Re McElroy at [14])
In Presbyterian Support Central [2009] NZHC 395, an application was made to vary the terms of a charitable trust on the basis that its purposes were inexpedient. The trust was originally established in 1957. The trust property was then a farm and the terms of the trust provided that "needy boys be accommodated there". In 1983 the trust's objects and the trustee's powers were changed. The farm was sold and the proceeds were to be devoted to giving assistance to boys who fell within certain categories. Application was made to expand the charitable purposes to include girls.
Dobson J considered the quote from Re McElroy and stated the following at [10]:
"The recognition of the need for a value judgement certainly expands the Court's jurisdiction. Traditional values strive to uphold charitable donors' intentions. Even although the cy pres doctrine does not apply in its full rigour, respect for the intentions of a settlor such as in the present case means that the Court must be persuaded that intervention to change is clearly warranted, and then only to the least extent to render ongoing administration of the Trust expedient. That constraint is recognised in the last two sentences in the quotation from McElroy, which eschew any jurisdiction to intervene merely to make what would be in the eyes of the Court an improvement in the Trust, and confines intervention to those cases in which present circumstances make it inexpedient to carry out such purposes."
His Honour then noted that the fact that a charitable trust discriminates on the basis of gender does not of itself render continued administration of the trust on its present terms inexpedient. Noting that conferring of charitable benefits is exempted from the forms of conduct potentially unlawful under the applicable discrimination legislation, his Honour considered a submission that the concept of inexpediency may apply where it is contrary to social norms and expectations that a fund of this type be administered on a gender non-equal basis. Dobson J, at [12], stated with respect to that submission that:
"However, charitable purposes inconsistent with widely accepted social norms are nevertheless to be respected. Inconsistency with social norms and expectations could only become 'inexpedient' where those norms are so pervasive that the inconsistency constitutes continued administration on present terms as being 'unsuitable, inadvisable or inapt' (per the Court of Appeal in McElroy)."
It was submitted on behalf of the Attorney-General that, applying that approach, the purposes of the charitable trust in this case could be considered "inexpedient" because the purposes are significantly discordant with "social norms and expectations".
I accept the submission that the purposes of a charitable trust could be considered inexpedient where those purposes are significantly discordant with social norms and expectations. In exercising the value judgment that I accept must be undertaken, I give consideration to the following factors which arise in this case.
Undoubtedly, gender equality is a societal norm or standard. In some quarters it is an aspirational standard. In others, gender-based discrimination is unlawful by virtue of anti-discrimination legislation. The limits of discrimination legislation are the product of compromise, resulting from attempts by the legislature to accommodate the interests of various groups such as traders, employers, religious denominations and others to the needs of the victims of discrimination: IW v City of Perth (1997) 191 CLR 1 at 15. The charitable trust in this case, which provides exclusively for male students, is inconsistent with the societal norm of gender equality, but is not unlawful and does not breach the Anti-Discrimination Act 1998. A person may include a discriminatory provision in a document or instrument that provides exclusively for charitable benefits wholly or partly for persons with a prescribed attribute such as gender: s 23. I accept though that that is really the beginning of the enquiry in terms of whether the charitable purpose is inexpedient.
In assessing the extent to which the trust is discordant with societal values, key considerations are matters regarding the genesis of the benefit that is conferred, the establishment of the trust, and that the scholarship is the product of a testamentary gift. The scholarship is not the product of a government grant or an endowment by a large corporation. For obvious reasons, the same expectations of neutrality and even-handedness do not apply. Society has different expectations about wills and charitable gifts. For a start, the benefit is a gift and windfall and not an entitlement. There is respect for the wishes of the benefactor and an understanding of testamentary freedom. In my view it is worthwhile bearing in mind that the "respect for the intentions of a settlor" (Dobson J in Presbyterian Support Central at [10]), a value upheld by the court, is also shared by society. There is an understanding that a testator's selection of a charitable purpose is necessarily informed by his or her life experiences, perspectives and perception of need. It is understood that the reason for the bequest may be deeply personal, such as in the case of Re The Evan Gibb Hudson Scholarship Fund HC, Auckland, M567/83, 9 June 1983 (considered in Presbyterian Support Central at [15]) involving a scholarship fund limited to males serving in the Engineering Corps of the New Zealand Army created in the memory of the settlor's son who was killed in the First World War. It is also understood that the choice made by the testator need not have been the product of a comparison and consideration of the relative worthiness of other possible classes of persons.
It will be understood that, as a former teacher, the testator would have acquired an insight and perspective regarding the need to encourage boys in their further education. There could well be factors which combined to discourage able and talented boys from continuing with their education, and the testator, in his capacity as a teacher, may have witnessed that first hand. It may be noted that the principal of the High School, Mr Matthew Bennell, predicts that, based on past enrolment figures, 62.5% of male students proceeding to years 11 and 12 are likely to complete year 12. The testator may have seen talented young men taking up employment in the local area in preference to continuing with their education. He may have witnessed the influence of societal factors such as a culture and expectation that boys would pursue manual labour rather than pursue further study. Statistics could show that the testator's perceptions of boys as a group of need were valid, and that the take-up of further study by boys from St Helens District High School was significantly less than in other regions of the State. I do not have evidence in this case that the perception of need was not valid. In any event, it is beside the point whether those views and concerns are correct. The point of some significance is that boys are a group who (just like girls) may legitimately be perceived as experiencing disadvantage and difficulty, and that a scholarship of this kind would result in a real benefit to members of that group. Furthermore, I consider that the scholarship will be regarded by the community as a product of the testator's professional and life experiences, and indeed, an act of great good will. It will also be regarded as a gift to the High School, encouraging and rewarding academic excellence. It is noted that the principal of the High School considered that eligibility for the scholarship should be limited to year 10 boys. He explains:
"The question of eligibility for both males and females is one which I have given additional consideration to. It is my view that Mr Chapple would have intended this scholarship as a means of supporting the young men of this community to make a positive contribution to their community. I therefore believe that this scholarship should be limited to grade 10 boys."
There are other considerations, some of which are competing. The scholarship is particularly generous and will be sought after and gain renown. It may of itself promote academic achievement. It may also mean the difference between a talented and deserving student being able to continue with their education, ultimately pursuing a career not otherwise open to them, and not continuing beyond years 10 or 12. There is the risk that the existence of the scholarship, available exclusively for boys, may endorse a perception that girls' education is less worthy of encouragement and reward. Predicted enrolments for the foreseeable future will have a ratio of 1:1 male to female students. In any year the most outstanding student in year 10 may be female. In that case, the female student's ineligibility for the scholarship on the basis of gender may seem to them, and the wider school community, as unfair. However, the discord with societal standards and the sense of grievance or unfairness will be muted by knowledge that the scholarship is funded by a bequest and the contextual considerations I have mentioned.
I take into account that a scholarship of this value is a rare bestowal. It seems to me that in the future it is unlikely that there will be a scholarship of this value available for female students of St Helens District High School. However, it is possible that the existence of the scholarship for boys will prompt efforts to make some provision exclusively for girls and the most outstanding female student in year 10.
In making the necessary value judgment the Court must take into account an important value, that of "respect for the intentions of a settlor". The courts intervene only if it is clearly warranted. The purpose of the charitable trust to benefit male students is central to the terms of the will and the charitable object; the criterion of gender is repeated and appears in the guiding principles regarding the scholarship. It was clearly intended to be unalterable. There is a public interest in charitable gifts generally and respecting testamentary freedom and the primacy of testamentary wishes. Obviously, defeating testamentary intention too readily will discourage these gifts.

It would have been ideal in terms of the desirability of reflecting societal standards and values if the scholarship had been open to female students as well as male students. However, that should not dominate the Court's view of this trust. The intention of the testator in making exclusive provision for male students is explicable. Enabling the most outstanding male student in year 10 to gain the academic qualifications to enable them to pursue their chosen career is a worthy cause, just as it would have been to provide a scholarship for the most outstanding female student in year 10. Making provision in a will for one group does not deny the worthiness of another. Having regard to the contextual considerations regarding testamentary gifts that I have identified, the discord with societal standards is muted. Balancing the considerations I have referred to, and noting the value attached to the testator's wishes by the Court and the community, I am not positively satisfied that the original purpose of the trust, to benefit male students only, is inexpedient.

Terms of the variation

As requested by counsel I will provide an opportunity for the parties to consider and make submissions regarding the specific terms of the variation or variations which I should approve in light of the Court's determination of the issues and the view reached about the proper construction of the will. Possible terms of a variation which have been adverted to are to allow a general discretion as proposed by the trustee, set out at [28] or, instead a discretion to deal with specific matters, refer [42], [43], [46]. I will also hear from counsel as to their position regarding whether the trustee should have a discretion to allow the scholarship to extend to post-graduate study.
There are questions in the originating application which were not the focus of submissions and which counsel foreshadowed may not need to be answered depending on the variation approved. I will give counsel an opportunity to pursue these questions and make submissions. It needs to be clarified whether a declaration or declarations are required. Finally, I note that it may be prudent to approve a change to the reference to St Helens High School in the will, reflecting the recent name change to St Helens District High School.

[Postscript

Subsequently, the parties were given an opportunity to be heard in relation to the orders. On 5 May 2017, the following orders were made:

Orders
Pursuant to s 6 of the Variation of Trusts Act 1994 the scheme set out herein varying the purposes for which property may be applied under the Kenneth Chapple Memorial Scholarship Trust Fund (established by cl 4 of the last Will of Kenneth Chapple) is hereby approved.
1 The provisions in cl 4 of the said will of Kenneth Chapple which establishes the Kenneth Chapple Memorial Scholarship Trust Fund are to be subject to the following provisions.
aThe trustee is to have a discretion to fund what it considers a deserving student after the two year period of a university degree up to and including the finalisation of the student's undergraduate university degree such discretion to apply where the trustee considers that without such funding such student would because of their financial circumstances be unable to pursue a career in their chosen field.
bThe trustee in awarding a scholarship has a discretion to either reimburse actual expenses and may, in such a case fix a cap with respect to those expenses, or may fix a global amount reflecting a reasonable assessment of or contribution towards anticipated educational expenses (as set out in cl 4.2.4) but paid irrespective of the actual expenses incurred. Further the trustee has a discretion in that:
iThe cap on the amount of actual expenses to be paid under the scholarship or the global amount may be fixed either annually or in total or both.
iiThe scholarship may be varied from time to time between one that reimburses actual expenses and a fixed global amount.
iiiThe timing of payments of the global amount is at the discretion of the trustee.
ivThe cap on the amount of actual expenses or the global amount may be varied at any time.

cThe trustee has a discretion with respect to a scholarship winner to meet a particular type of educational expense by reimbursing the expense incurred while also, for another type of educational expense, fixing an amount as a reasonable contribution, regardless of the expense incurred.
dThe trustee may decline to pay all or any of an actual expense or type of expense such as educational fees, books, accommodation or other educational expenses in cl 4.2.4 on the basis that it is an unreasonable amount or it is not reasonable for the scholarship to meet such expense.
eThe trustee may pay the equivalent of four years of scholarship funding beyond that period of time on a pro-rata basis such as to allow funding to extend for years 11 and 12 and the duration of the student's university degree.

The discretions hereby conferred are in addition to and are not to be taken as limiting the discretions contained in cl 4 of the said will.
2 Noting that St Helens High School is now known as St Helens District High School, all references to St Helens High School in the will are to St Helens District High School. In the event that St Helens District High School ceases to exist, the scholarship shall apply to such educational institution as the trustee considers is the successor to St Helens District High School in terms of the education it provides.

The costs of the parties of and incidental to the application be paid out of the estate on a solicitor and own client basis.]