Chapter 15 Cy-Pr S Variation at General Law

CHAPTER 15
Cy-Près Variation at General Law
Relationship Between General Law and Statutory

Cy-Près Variation 15.2
Initial Impracticability or Impossibility 15.4
General principle 15.4
Successor institutions 15.6
Accretion to charitable trusts 15.11
Application cy-près in case of initial impossibility and impracticability 15.13
Gift for a charitable purpose rather than to a charitable institution 15.14
Subsequent (‘Supervening’) Impossibility and Impracticability 15.16
Date at Which Impossibility or Impracticability to be Assessed 15.18
‘Impossibility’ or ‘Impracticability’ 15.20
Approach to determining ‘impossibility’ and ‘impracticability’ 15.20
Gifts for buildings that are not required 15.22
Impracticable conditions 15.23
Non-Existent Institutions 15.26
Application cy-près 15.27
Misdescription and the problem of multiple claimants 15.29
Donation Cases 15.33
General law and statutory jurisdiction 15.33
‘Out and out’ gift or return to donors? 15.34
Application of ‘out and out’ gifts 15.38
Excess in Charitable Bequests 15.40
Distinguishing General From Specific Charitable Intention 15.44
The concept of ‘general charitable intention’ 15.45
Courts’ attitude to finding general charitable intention 15.47
Definition of ‘general charitable intention’ 15.49
Terms of the actual bequest 15.51
Context of the bequest 15.58
Particular charitable intention in cases of initial impossibility 15.62
Gift of specific property to be used in a specific charitable way 15.63
Detail and particularity 15.66
Bequest to specific institution that no longer exists 15.68
Determining What is Cy-Près 15.70
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Cy-Près Variation at General Law 15.2
15.1 One of the ways that the law favours charitable trusts is to allow them to (continue to)
operate even where, had they been other than charitable, the disposition would have lapsed.
Specifically, the courts have assumed a jurisdiction to apply the property of a charitable trust
that fails for impossibility, impracticability or illegality to another charitable purpose that is
cy-près1 the charitable purpose that has failed.2 The need for a jurisdiction of this kind, beyond
the notion that the law encourages charity, is that charitable trusts can, once vested, take effect
in perpetuity.3
The general law principles applicable to cy-près variations are the subject of this chapter.
The main scenario that trigger cy-près issues is, as foreshadowed above, that where the gift
fails for initial impossibility or impracticability.4 The chapter also deals with other scenarios
that raise equivalent issues, namely where the purpose fails subsequent to its implementation
(‘subsequent impossibility’),5 where gifts are made to non-existent bodies,6 and where
donations exceed that required to effect the purpose(s) of the subscription.7 At the core of
most cy-près applications is the concept of general charitable intention, which the chapter
addresses discretely.8 It concludes by giving colour to the parameters of cy-près applications.9
As, however, the grounds for cy-près applications have been statutorily prescribed in all
Australian States, the relationship between the statutory jurisdiction, and that at general law,
merits treatment at the outset of the chapter.
Relationship Between General Law and Statutory

Cy-Près Variation
15.2 Following the lead of the United Kingdom,10 other than in the Territories statute
impacts on the operation of the general law cy-près doctrine. The ensuing chapter is devoted
to these statutory provisions. While the scope and detail of the statutory impact varies between
jurisdictions, in each instance it broadens the circumstances in which the original purposes
of the trust or gift can be varied.11 Whereas these circumstances are at general law limited to
the ‘impossibility’ or ‘impracticability’ of the original purposes,12 the statutory circumstances
include where ‘the original purposes have ceased to provide a suitable and effective method
of using the trust property’ (in New South Wales, Queensland, South Australia, Tasmania
and Victoria), and where it is ‘inexpedient’ to carry out the original purposes (in Tasmania and
Western Australia).
1. The term ‘cy-près’ is an English translation of the Norman French term ‘cy-pres comme possible’, meaning
‘as near as possible’.
2. A more detailed treatment of the doctrine in the charity context is found in R P Mulheron, The Moden
Cy-près Doctrine: Applications and Implications, Taylor & Francis, Great Britain, 2006, Pt I.
3. See 6.10–6.12.
4. See 15.4–15.15.
5. See 15.16, 15.17.
6. See 15.26–15.32.
7. See 15.33–15.43.
8. See 15.44–15.69.
9. See 15.70–15.74.
10. Namely the (then) Charities Act 1960 (UK) s 13 (thereafter Charities Act 1993 (UK) s 13; now Charities
Act 2011 (UK) s 62). The English provision was enacted in response to the Report of the Committee on
the Law and Practice Relating to Charitable Trusts, HMSO, London, 1952, pp 91–2 (known as the ‘Nathan
Committee’, after its Chairperson, Lord Nathan). The same has more recently been recommended in
Hong Kong: Law Reform Commission of Hong Kong, Charities, Report, December 2013, Ch 8. In the
United States, the Uniform Trust Code §412 (enacted in the majority of states) makes provision for a
cy-près-type doctrine to extend to non-charitable trusts (reflecting what at common law had been termed
the doctrine of ‘deviation’), whilst retaining a dedicated cy-près provision (§413).
11. This point has been clearly recognised in the case law: see, for example, Re Lepton’s Charity [1972] Ch 276
at 284 per Pennycuick VC; Re J W Laing Trust [1984] 1 Ch 143 at 151 per Peter Gibson J; Forrest v Attorney-
General [1986] VR 187 at 189 per Nathan J; Varsani v Jesani [1998] 3 All ER 273 at 284 per Morritt LJ.
12. See 15.20–15.25.
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15.2 Law of Charity
That the Queensland and Victorian legislation states that the circumstances that justify
a cy-près application ‘shall be as follows’13 reveals that the statute was intended to exhaustively
prescribe the circumstances in which a cy-près application can be made. The wording of the
Western Australian provisions14 justifies a like conclusion.15
In Queensland the general law retains a role in cy-près applications in donation cases.16 The
statute in New South Wales,17 South Australia18 and Tasmania19 is not expressed in exhaustive
terms, and so may not displace the general law to the extent of its application. Yet to that
extent, as the statutory grounds to vary the original purposes of the trust or gift are broader
than those available at general law, invoking the general law carries few benefits.20 The main
exception is found in the New South Wales legislation, which is phrased in terms that do not
encompass gifts to non-existent institutions;21 the general law accordingly continues to apply
in these cases.22
15.3 The foregoing should not be taken to suggest that the general law discussed in this
chapter assumes relevance only for the occasions mentioned above, or on those few occasions
in which cy-près issues arises in the Territories. The statutorily prescribed circumstances that
attract the cy-près jurisdiction mostly mirror those already recognised at general law. It is,
accordingly, difficult to appreciate the practical operation of the statutory provisions without
an understanding of the circumstances that have given rise to cy-près applications at general
law, and the case law dealing with these.
Initial Impracticability or Impossibility

General principle
15.4 A bequest to a charitable institution (‘the named institution’) that ceased to exist
prior to the testator’s death, whether before or after the date of the will, ordinarily lapses
13. Trusts Act 1973 (Qld) s 105(1); Charities Act 1978 (Vic) s 2(1): see 16.4, 16.5.
14. Charitable Trusts Act 1962 (WA) s 7(1): see 16.6.
15. This was first established in New Zealand, where an equivalent provision exists (see Re Palmerston North
Halls Trust Board [1976] 2 NZLR 161 at 163–5 per Wild CJ; Re Twigger [1989] 3 NZLR 329 at 340 per
Tipping J; St John of God Health & Elder Care Services Trust Board v Little Sisters of the Poor (NZ) Trust Board
(2008) 28 FRNZ 219; [2008] NZHC 1273 at [20] per Asher J) before translating to parallel judicial statement
in Western Australia (see Taylor v Princess Margaret Hospital for Children Foundation Inc (2012) 42 WAR
259; [2012] WASC 83; BC201201178 at [47] per Edelman J; Eccles v Salvation Army [2013] WASC 142;
BC201302282 at [10] per E M Heenan J; Price v Attorney General for Western Australia [2014] WASC 430;
BC201409726 at [21] per Chaney J).
16. See 16.5. As to the general law relating to donation cases see 15.33–15.39.
17. Charitable Trusts Act 1993 (NSW) s 9(1): see 16.2. This is confirmed by s 4(3), which states that the
Act does not apply to the exclusion of the provisions of any other Act relating to charitable trusts;
accordingly, it has been noted that its provisions ‘are not to be regarded as a code in respect to charitable
trusts’: New South Wales Women’s Aboriginal Corporation (in liq) v Commissioner of Dormant Funds (2004)
12 BPR 22,381; [2004] NSWSC 202; BC200401293 at [23] per McLaughlin M.
18. Trustee Act 1936 (SA) s 69B(1): see 16.4.
19. Variation of Trusts Act 1994 (Tas) s 5(2), 5(3): see 16.4.
20. Re Estate of Pitt (deceased) (2002) 84 SASR 109; [2002] SASC 332; BC200206021 at [43], [44] per Duggan J.
It has been suggested that the general law may allow the court to dispense with impracticable conditions
attached to a gift (see 15.23–15.25), whereas it is unclear as to whether the statutory grounds do likewise,
the logic being that a condition may not be seen as a purpose of the trust or gift. In any event, in those
jurisdictions where statute exhaustively prescribes the circumstances that permit a cy-près application,
it is likely that the removal of a condition is within the court’s administrative jurisdiction. See generally
Re J W Laing Trust [1984] 1 Ch 143 at 151–5 per Peter Gibson J.
21. See 16.3.
22. As to the general law relating to gifts to non-existent institutions see 15.26–15.32.
360
23
(‘the lapse rule’). The reason is that by designating the named institution as the donee the
testator has prima facie at least demonstrated an intention that the charitable object(s) he
or she wishes to benefit are to be benefited through the instrumentality of the named institution
and in no other manner.24 The same rule applies in cases of gifts, not to a named charity, but for
a charitable purpose that is not practicable or possible.25 On the lapse of a gift, its subject matter
reverts to the donor’s estate via a resulting trust that fills the void in beneficial ownership.26
The above rule is no more than an illustration of the general principle applicable to bequests
to individuals who predecease the testator, which lapse and fall for distribution according to
the rules of intestacy.27 But in the case of a gift for a charitable purpose, or for a charitable
institution, the law recognises three principal exceptions to the lapse rule.28 These apply where:
another institution (a ‘successor institution’) carries on the work of the named institution;
the gift can be construed as an accretion to existing charitable trusts; or the gift is made with
a general charitable intention.29 A fourth exception, of a more recent genesis, seems to have
been developed by Queensland courts.30 Each of these exceptions is considered in turn below.
15.5 The foregoing presupposes, though, that the testator has made no alternative provision
the destination of a gift that proves impossible or impracticable (via a ‘gift over’); if provision
of this kind is made, the court will give effect to it,31 and there is neither lapse nor any need
to consider the above exceptions.32 In the event that the gift over is likewise impossible or
impracticable, the question of lapse or its exceptions resurfaces.33
Successor institutions
15.6 If at the date of the testator’s death another institution has taken over the work
previously carried on by the named institution and can properly be regarded as the successor
of the named institution, the gift will take effect in favour of the successor institution if the
23. Re Buck [1896] 2 Ch 727 at 735 per Kekewich J; Re Davis [1902] 1 Ch 876 at 880–1 per Buckley J; Re Jones
[1907] SALR 190 at 196 per Way CJ; Re Cripps (deceased) [1941] Tas SR 19 at 24 per Morris CJ; Re Lucas
[1948] 1 Ch 424 at 427 per Lord Greene MR; Re Chanter (deceased) [1952] SASR 299 at 302 per Mayo J;
Re Hutchinson’s Will Trusts [1953] 1 Ch 387 at 393 per Upjohn J; Re Tacon [1958] 1 Ch 447 at 453 per
Lord Evershed MR; Re Slatter’s Will Trusts [1964] 1 Ch 512 at 519 per Plowman J; Re Tyrie (deceased) (No 1)
[1972] VR 168 at 177 per Newton J; Re Rowell (deceased) (1982) 31 SASR 361 at 371 per Wells J; Re Pettit
[1988] 2 NZLR 513 at 546 per Chilwell J; Re Findlay’s Estate (1995) 5 Tas R 333 at 340; BC9506698 per
Cox CJ; Alacoque v Roache [1998] 2 NZLR 250 at 253–4 per Somers J.
24. Re Tyrie (deceased) (No 1) [1972] VR 168 at 177 per Newton J.
25. Re Tacon [1958] 1 Ch 447 at 453 per Lord Evershed MR.
26. Re Dyer [1935] VLR 273 at 286 per Gavan Duffy J, at 288–9 per Martin J; Re Flatman [1953] VLR 33 at 37
per Barry J; Re Tyrie (deceased) [1970] VR 264 at 268 per Gowans J; Re Jung (1979) 99 DLR (3d) 65 at 69
per Andrews J (SC(BC)).
27. See G E Dal Pont and K F Mackie, Law of Succession, LexisNexis Butterworths, Australia, 2013, [7.13]–[7.22].
28. Re Tyrie (deceased) (No 1) [1972] VR 168 at 177–8 per Newton J.
29. For the meaning of ‘general charitable intention’ see 15.44–15.61.
30. See 15.14, 15.15.
31. See, for example, Simmons v Parsons College (1977) 256 NW 2d 225 at 227 (where the testator had made
express provision for the destination of a scholarship fund in the event that its intended object was unable
to fulfil its conditions, the Supreme Court of Iowa held that ‘[t]he cy-près doctrine is inapplicable when the
testator has anticipated the possible failure of the trust and has made alternative disposition of his property
to meet that contingency’); Re Leer Estate (2005) 264 Sask R 131; [2005] SKQB 276 (bequest to a hospital
that no longer existed at the date of the testator’s death, but the will made express provision that, should
that hospital not be operating at the date of death, the remaining estate should be distributed in a different
way); Tasmanian Perpetual Trustees Ltd v Attorney-General [2015] TASSC 1; BC201500316 at [39]–[41]
per Wood J (where a bequest of cottages to be rented to ‘spinsters in poor circumstances’ provided that if
spinsters in poor circumstances were not to avail themselves of any or all of the residences, the residences
were to be let generally, and the rental income was to benefit the Queen Victoria Hospital for Women in
Launceston).
32. Melba Support Services Inc v Bell [2014] VSC 425; BC201407400 at [59] per McMillan J.
33. See, for example, Aged and Community Care Victoria Ltd v Warley (2011) 33 VR 102; [2011] VSC 145;
BC201102031 at [30]–[38] per Habersberger J.
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15.6 Law of Charity
testator’s charitable intention is wide enough to allow this.34 This represents one aspect of the
court’s jurisdiction to order the application of property cy-près.
At the same time, it should not be assumed that every instance where a named institution
changes its form represents the successor institution scenario. A mere change in form, say from
an unincorporated association to a corporate form, or from an incorporated association to a
company limited by guarantee, need not be seen as the charity ceasing to exist, provided that
the objects and purposes of each institution remain constant.35 In this event there is no need
for a cy-près scheme because effect is being given to the gift.
15.7 In assessing whether or not an institution is a successor institution, it is relevant
to compare its objects and activities with those of the named institution.36 Where there is
complete identity between the institutions in question, the cy-près doctrine is readily applied
(or the court may, as noted above, conclude that there has in fact been no ceasing of the named
institution). The same is so if there is ‘practical identity’37 between the two institutions.
But a cy-près application is not precluded by an absence of practical identity between the
institutions.38 In these scenarios the testator’s purpose in making the gift is the central inquiry.
The broader that purpose can be construed, the greater the prospect that an institution can
take as a successor even if it differs from the named institution.
Where the gift, though to a particular institution, is expressed for the purpose of carrying on
a particular charitable work, the relevant inquiry is whether its alleged successor institution
carries on that work, rather than proof of a precise identity with the object of the named
institution.39 In Re Wright40 a bequest to the Director of Education to be used for the benefit
of the since closed ‘Teachers’ Training College’ was construed as for the work of the college.
As the University of Tasmania now carried on that work, the gift did not lapse. In any event,
if the court fears that the objects or activities of an alleged successor go beyond those of the
named institution, it may impose conditions on the successor’s use of the gift in line with the
terms of the bequest.41
15.8 The foregoing does not mean that courts will adopt an artificially broad construction of a
bequest to a named institution that no longer exists so as to apply the gift to another institution.
34. Re Tyrie (deceased) (No 1) [1972] VR 168 at 177–8 per Newton J.

35. See, for example, Public Trustee v Cerebral Palsy Association of Western Australia Ltd (2004) 28 WAR 496;
[2004] WASC 36; BC200400986 (where the ‘Spastic Welfare Association of Western Australia Inc’ had, by
virtue of an order by the Acting Commissioner of Corporate Affairs, been dissolved and its property vested
in the defendant (a company limited by guarantee), which also assumed its rights and liabilities, Barker J was
willing to construe the named institution as not having ceased existence: at [40], [41]); Re Coulson [2014]
VSC 353; BC201406051 at [43], [65] per McMillan J (conversion of donee charity from an incorporated
association to a company limited by guarantee precluded the gift from lapsing).
36. Re Watt [1932] 2 Ch 243n at 245 per Lord Hanworth MR; Estate of Liebelt (deceased) (1983) 32 SASR 138
at 143 per Sangster J.
37. See, for example, Re Goodson (deceased) [1971] VR 801 at 810 per Adam J (where there was no interruption
in the continuity of the work the institution carried on, and there was a ‘practical identity’ between the
two bodies evidenced by the same members, office bearers, buildings and bank account); Cram Foundation
v Corbett-Jones [2006] NSWSC 495; BC200603747 at [28] per Brereton J (where the second institution
‘plainly took over the work and purposes, as well as the assets and liabilities, of the original unincorporated
Society’); Overall v Family Voice Australia Inc [2014] NSWSC 736; BC201419218 at [47]–[49] per Darke J
(where gift to unincorporated donee, which subsequently becomes incorporated, and the incorporated body
later became a branch of a national incorporated body, the relevant objects and activities remaining the
same throughout); Re Public Trustee [2014] SASC 46; BC201402212 at [24] per Stanley J. See also the
cases dealing with gifts to hospitals that were subsequently nationalised during World War II by the English
parliament: Re Morgan’s Will Trusts [1950] 1 Ch 637 at 642–3 per Roxburgh J; Re Meyers [1951] 1 Ch 534
at 539–42 per Harman J.
38. See, for example, Re Estate of Healy [2014] VSC 257 at [49]–[52] per Daly AsJ.
39. St John of God Health & Elder Care Services Trust Board v Little Sisters of the Poor (NZ) Trust Board (2008)
28 FRNZ 219; [2008] NZHC 1273 at [67] per Asher J.
40. [1951] Tas SR 13 at 15 per Green J.
362
If the respective objects of the institutions differ in substance, the second institution will have
a weak claim to the bequest. For example, in Australian Executor Trustees Ltd v Ceduna District
Health Services Inc42 Vanstone J held that the defendant was not the successor of the named
institution, because although its operations coincided with those of the latter to an extent, its
objects were broader and quite different. It served a different geographical area and lacked the
focus on aged and indigent persons that characterised the named institution’s purposes.
15.9 There can be a fine line between the case law dealing with misdescriptions43 and
that dealing with successor institutions. A successor institution is, by definition, a different
institution to the now non-existent institution named in the will, whereas misdescription
cases involve a testator misdescribing an existing institution. If, for example, a named
unincorporated institution then incorporates, it can be seen both as a misdescription and
a successor institution44 or, alternatively, a continuation of the very same institution.45
Another example is Re Flynn (deceased),46 which involved bequests to two charitable
institutions, ‘St Vincent de Paul’s Girls’ Orphanage’ and ‘St John of God, Training Centre
for Retarded Children’. At the time of the testatrix’s death, the name of each institution had
been changed because the first now admitted both boys and non-orphans, and the second now
accommodated retarded children in group homes rather than dormitories. Starke J construed
the gift as evidencing an ‘essential and indispensable intention’ that the charitable purpose be
carried out, in the case of the first gift, through the instrumentality of a home conducted by the
Sisters of Mercy, and in the case of the second gift, by the Order in question. Though this led
to the conclusion that this was a case of misdescription in that the named institutions had not
changed, in the event that this was incorrect, Starke J found the institutions to be successor
institutions to the named institutions.47
15.10 In any event, even if an institution fails to convince the court that it is a successor
institution to the named institution, the court may nonetheless apply the gift cy-près
(which may include the alleged successor as an object) if it finds that the donor evinced
a general charitable intention.48
Accretion to charitable trusts

15.11 If, on a proper construction of the will, the testator can be said to have intended that
the gift should operate as an accretion to the assets of the named institution — so to become
subject to whatever charitable trusts were from time to time applicable to those assets — and
the assets remained subject to charitable trusts that were still on foot at the testator’s death
after the named institution ceased to exist, the gift is treated as taking effect as an accretion to
any property that was at the date of death subject to those trusts.49 These cases are not about
42. (2006) 245 LSJS 371; [2006] SASC 286; BC200607344. For other examples of institutions found not to be
true successors see Re Rowell (deceased) (1982) 31 SASR 361 at 373 per Wells J; Estate of Liebelt (deceased)
(1983) 32 SASR 138 at 143 per Sangster J.
43. As to the law on misdescription see 15.29–15.32.
44. Re Goodson (deceased) [1971] VR 801 at 810 per Adam J. Although there is authority phrased in the context
of successor institutions where a named institution has simply changed its address (Re Wedgwood [1914]
2 Ch 245 at 249–50 per Joyce J), this situation is better described as an example of misdescription.
45. See 15.6.
46. [1975] VR 633.
47. Re Flynn (deceased) [1975] VR 633 at 638–9.
48. Re Rowell (deceased) (1982) 31 SASR 361 at 373 per Wells J; Estate of Liebelt (deceased) (1983) 32 SASR
138 at 143 per Sangster J; Public Trustee v Cerebral Palsy Association of Western Australia Ltd (2004) 28 WAR
496; [2004] WASC 36; BC200400986 at [41] per Barker J. For the meaning of ‘general charitable intention’
see 15.44–15.61.
49. Re Tyrie (deceased) (No 1) [1972] VR 168 at 178 per Newton J. See also Re Weiss [1934] VLR 269 at
272 per Mann J (termed the ‘doctrine of the notional continuance of a charity’); Re Quesnel (deceased)
[1959] SASR 106 at 109–10 per Napier CJ.
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15.11 Law of Charity
initial impossibility, in that the trusts the subject of the charity continue even though the
charitable institution itself may have closed.
In the leading case, Re Faraker,50 the endowments of several charities were consolidated under
a scheme sealed by the Charity Commissioners,51 the objects of which went beyond those of
the individual charities. The issue was whether a gift to one of those charities (‘Hannah Bayly’s
Charity’), the purpose of which was to benefit poor widows, failed because the charity no
longer existed and the new charity, though directed to the relief of poverty, was not directed
to widows. The English Court of Appeal upheld the gift, the judgment of Kennedy LJ best
expressing the court’s reasoning:52
[N]o case has been shewn to me in which an endowed charity has been treated as having,
so to speak, lost its life by reason of the exercise of the perfectly competent authority under
parliamentary sanction of the Charity Commissioners, or the equally competent authority of this
Court, under which its funds have come to be applied somewhat differently to the way in which
they were applied under the original foundation … [A]n endowed charity, to whatever purpose its
funds are devoted, if and so long as they are devoted to some charitable purpose under some duly
authorised scheme, remains still in existence so as to draw to it a sum of money given by a will for,
presumably, the same purpose as the original charity.
The rationale lies in the basic notion that once funds are devoted to charity, they cannot be
devoted for non-charitable purposes; there is no lapse because the charity cannot die until its
funds are completely expended and exhausted.53 An Australian example is found in Re Quesnel
(deceased),54 in which the hostel named in the bequest had closed by the time of the testatrix’s
death, but its committee and funds subsisted. The latter prompted Napier CJ to rule that
the gift should be added to ‘the balance of the trust funds for application as and when the
opportunity should offer’.55
15.12 However, if funds have come into the hands of a charitable institution that is founded
as one liable to termination, and its constitution provides for the disposal of its funds in that
event, on the institution ceasing to exist the charity or the charitable trust itself ceases to exist
and the doctrine of lapse applies.56 Where a charitable institution ceases to exist for lack of
funds, the ordinary lapse rule also applies because there are no trusts that the gift can augment.57
Application cy-près in case of initial impossibility and impracticability

15.13 If a bequest is made to a charitable institution that ceases to exist prior to the date of
the testator’s death, or for a charitable purpose that proves to be impossible or impracticable
as at that date, the gift will not lapse if, on a proper interpretation of the will, the testator has
displayed a general charitable intention58 in making the gift.59 The court will instead apply
the gift by means of a cy-près scheme to an object as near as possible to the testator’s general
charitable intention so characterised.60
50. [1912] 2 Ch 488.

51. Now the Charity Commission, as to which see 20.12–20.14.
52. Re Faraker [1912] 2 Ch 488 at 496. See also at 493 per Cozens-Hardy MR, at 495 per Farwell LJ; Re Lucas
[1948] 1 Ch 424 at 428–30 per Lord Greene MR; Re Bagshaw (deceased) [1954] 1 All ER 227 at 229 per
Danckwerts J; Re Stemson’s Will Trusts [1970] 1 Ch 16 at 26 per Plowman J.
53. Re Hutchinson’s Will Trusts [1953] 1 Ch 387 at 393 per Upjohn J; Re Quesnel (deceased) [1959] SASR 106 at
109–10 per Napier CJ.
54. [1959] SASR 106.
55. Re Quesnel (deceased) [1959] SASR 106 at 110.
56. Re Stemson’s Will Trusts [1970] 1 Ch 16 at 26 per Plowman J.
57. Re Weiss [1934] VLR 269 at 274 per Mann J.
59. The requirement of general charitable intention in this context stemmed from late 1700s and early 1800s
cases in which the courts were concerned to protect the expectations of heirs against charitable dispositions:
Chesterman, p 219.
60. As to what is cy-près the donor’s intention see 15.70–15.74.
364
Gift for a charitable purpose rather than to a charitable institution

15.14 Queensland courts have developed what can be viewed as a further exception to the
lapse rule. It operates in a case where, upon the proper interpretation of the will, the gift is
directed to a particular charitable purpose of a named non-existent institution. If that purpose
remains capable of fulfillment, then according to this line of authority, the gift remains valid,
independent of any successor institution or the need for a cy-près scheme, and the money may
be paid to a suitable entity to apply the funds to that purpose.
The seminal case is Ball v State of Queensland,61 involving a bequest to the North Brisbane Hospitals
Board for the purpose of buying equipment for a specified hospital. That the Board had ceased to
exist some five years before the will was made did not prevent Byrne SJA upholding the gift. To
the contrary, this inclined his Honour to conclude that the testatrix ‘had neither a connection of
a personal nature with the members of the board nor an informed appreciation of its undertaking’,
in the absence of other evidence that she ‘reposed special confidence in board members or staff
because of some association with the organisation’.62 As ‘[t]he identity of the designated donee was
not of the essence of the gift’, the purpose of the gift had not failed, and so there was no lapse.63
Byrne SJA ordered that the gift be paid to the Royal Children’s Hospital Foundation, which had
the role of raising funds for the hospital and could use the money for purposes that would enable it
lawfully to buy equipment for the hospital in line with the testatrix’s bequest.
Ball was followed in Public Trustee v Attorney-General,64 to uphold a bequest ‘to the
Queensland Children’s Research Foundation for the charitable purposes of the foundation’,
which ceased to exist before the testator died. It was held that the foundation’s continuing
existence ‘was not seen by the testator as indispensable to the efficacy of the gift’, given the
lack of evidence indicating his reposing of special trust or confidence in the foundation by
reason of any association with it.65 The gift, therefore, could be construed as a purpose gift,
which could be effected by vesting the gift in the Royal Children’s Hospital Foundation.
15.15 Whether these cases represent a new exception to the lapse rule, or can be
accommodated within existing principle, is a legitimate inquiry. The outcome in the second
case could easily have been subsumed within the case law dealing with successor institutions,
and it would not have been too substantial a stretch to do likewise in the first case. Divorcing
a testator’s purpose in making a gift to a non-existent institution from the purpose of that
institution is challenging at best. Hence, construing that gift as a purpose gift as a means to
redirect it to an institution with a similar purpose is arguably no different an approach to
that adopted in the successor institution cases. Indeed, in each Queensland case there was an
obvious coincidence between the purposes of the named institution and those of the institution
to which the gift was ultimately directed. It is difficult, to this end, to envisage how the Ball
approach could provide an avenue for validity of a gift that is not otherwise available under the
existing flexible successor institution approach.
Subsequent (‘Supervening’) Impossibility and Impracticability

15.16 If a gift is made to a charitable institution that, once the gift has taken effect,66 ceases
to exist, the court will apply that property to objects as near as possible (cy-près) to those of
the extinct institution.67 The same ensues for bequests for charitable purposes that, subsequent
to the testator’s death, become impractical or impossible. The foregoing reflects the general
61. [2009] 2 Qd R 327; [2009] QSC 174; BC200905773.

62. Ball v State of Queensland [2009] 2 Qd R 327; [2009] QSC 174; BC200905773 at [10].
63. Ball v State of Queensland [2009] 2 Qd R 327; [2009] QSC 174; BC200905773 at [12].
64. [2009] QSC 353; BC200910092.
65. Public Trustee v Attorney-General [2009] QSC 353; BC200910092 at [18] per A Lyons J.
66. As to which see 15.18, 15.19.
67. Beggs v Kirkpatrick [1961] VR 764 at 767 per Adam J.
365
principle that, once devoted to charity, a fund or property cannot be applied for any other
purpose or person; there is no lapse and the next-of-kin are excluded. The gift or fund is applied
cy-près because it has taken effect for a charitable object, even if it has yet to become payable, or
has otherwise not yet been paid over, to the charity.68 For this reason, subsequent impossibility
cases, unlike those of initial impossibility,69 require no proof of general charitable intention as
a precondition to cy-près application.70 There is sense in this outcome, for it avoids the difficult
and expensive process of identifying those who would otherwise take upon the failure of a trust
that may have been operative for many years; any such difficulty is far less acute in cases of
initial impossibility.71
15.17 The above must yield to contrary intention. If, say, the will provides that, upon
a subsequent failure of the object of the charitable gift, the property the subject of the gift
should revert to the testator’s estate (or to another prescribed destination), the court will
give effect to this intention.72 This occurred in Re Estate of Wilmott (deceased),73 where the
testatrix bequeathed £10,000 to construct or purchase a house to be used as a home for indigent
old ladies as may be ‘worthy of assistance’. Once it proved no longer possible to operate the
home in accordance with the testatrix’s particular charitable intent, McDonald J gave effect to
the clause in her will under which, in the event of the failure of the gift, the amount remaining
should become part of the residue of her estate to be divided between six institutions identified
by the will.74
Contrary intention may surface less explicitly. Where the gift to charity can be construed
as being restricted in time, or otherwise conditional, the court must, unless the dispositive
instrument makes clear the intended destination of the fund in question (a ‘gift over’),
determine in whom the fund is to vest upon the expiry of time or upon the triggering of the
condition. As a general principle, property that is the subject of a limited or determinable gift
to charity reverts, upon termination of the gift, to the donor (or his or her estate) absent a valid
gift over.75 If, though, a gift of property devoted to charity is subject to a condition subsequent,
and that condition is void, the gift is treated as an unconditional, absolute, gift to charity.76
68. Re Slevin [1891] 2 Ch 236 at 243 per Kay LJ (citing Attorney-General v Ironmongers’ Co (1840) 2 Beav
313; 48 ER 1201); Re King [1923] 1 Ch 243 at 246 per Romer J; Hixon v Campbell (1924) 24 SR (NSW)
436 at 443 per Maughan AJ; Re Swaine [1939] SASR 25 at 28–9 per Angas Parsons J; Re Guidi (deceased)
[1948] SASR 207 at 212 per Reed J; Re Moon’s Will Trusts [1948] 1 All ER 300 at 303 per Roxburgh J;
Re Tacon [1958] 1 Ch 447 at 453 per Lord Evershed MR; Re Pettit [1988] 2 NZLR 513 at 546 per Chilwell J;
Re Findlay’s Estate (1995) 5 Tas R 333 at 341; BC9506698 per Cox CJ.
69. As to which see 15.4–15.15.
70. Re Woollnough [1953] Tas SR 25 at 30 per Morris CJ; Beggs v Kirkpatrick [1961] VR 764 at 767 per Adam
J; Re Lysaght (deceased) [1966] 1 Ch 191 at 208 per Buckley J; Re Fitzpatrick (1984) 6 DLR (4th) 644 at
652 per Simonsen J (QB(Man)); Perpetual Trustees Tasmania Ltd v Attorney-General (SC(Tas), Zeeman J,
18 November 1993, unreported) at 9. Though there are some statements in the case law suggesting that
general charitable intention is a precondition to cy-près applications in cases of subsequent impossibility
(see, for example, Re Peacock’s Charity [1956] Tas SR 142; Re Findlay’s Estate (1995) 5 Tas R 333 at 342;
BC9506698 per Cox CJ), and others that are ambivalent on the issue (see, for example, Re Moore (deceased)
(1991) 55 SASR 439 at 444 per Bollen J; Boy Scouts of Canada v Doyle (1996) 149 DLR (4th) 22 at 75 per
Marshall JA (CA(Nfld))), the proposition stated in the text is so well supported by authority as to render
these statements incorrect.
71. Scott, 4 ed, vol 4A, §399.3.
72. Re Slevin [1891] 2 Ch 236 at 239 per Kay LJ; Re Cooper’s Conveyance Trusts [1956] 1 WLR 1096; Perpetual
Trustees Tasmania Ltd v Attorney-General (SC(Tas), Zeeman J, 18 November 1993, unreported) at 9. The
donation cases involving excess funds where the moneys were not given with general charitable intention
but subject to resulting trust can also be seen as an example of this principle: see 15.34–15.37.
73. [1999] VSC 485; BC9908186.
74. Re Estate of Wilmott (deceased) [1999] VSC 485; BC9908186 at [32], [33], [41].
75. Cram Foundation v Corbett-Jones [2006] NSWSC 495; BC200603747 at [81] per Brereton J (and see also
the discussion at [52]–[54]). Cf Scott 4 ed, vol 4A, §401.4 (who states that a provision that a charitable
trust shall terminate, and its property revert to the donor (or heirs), is to be strictly construed, and the court
will not permit the donor or heirs to recover the property unless it is clear that the terminating event has
been triggered).
76. An example is where the condition is void for perpetuity: see 6.10–6.12.
366
Date at Which Impossibility or Impracticability to be Assessed

15.18 In cases of impossibility or impracticability, it is critical to identify whether
the charitable purpose has taken effect and then failed (subsequent failure), or whether it
has failed to take effect at all (initial failure). In the former case the cy-près doctrine applies
without the need to establish a general charitable intention, whereas in the latter a cy-près
application rests on proof of general charitable intention.77
15.19 The need to make this distinction is somewhat arbitrary,78 and it is odd that the
testator’s intention is critical if failure occurs immediately before his or her death, but not
immediately subsequent to it. Be that as it may, the law in the area is settled,79 such that the
test of impossibility or impracticability is to be applied as at the date of the testator’s death,80
which remains so notwithstanding the prior intervention of a life estate.81 The relevant date
is the date on which the charity trustees become absolutely entitled to the legacy as opposed
to the moment when it becomes payable to them which, in the case of a future legacy, is at
a future time.82 If the gift is impossible or impracticable at this date, it lapses in the absence of a
general charitable intention, and those who take in default are entitled pursuant to a resulting
trust.83 Conversely, if the gift is not impossible or impracticable as at this date, the next-of-
kin or other interests are, subject to contrary provision in the will, forever excluded even
though later supervening events defeat the testator’s precise purpose.84 The onus of establishing
impossibility or impracticability lies on the persons alleging it.85
However, a gift for a charitable purpose that is expressed to take effect upon the happening of
a future event will lapse if there is no reasonable prospect of it becoming possible or practicable
to use the fund charitably at any future time.86 The court can direct an inquiry for this purpose,87
77. As to the meaning of ‘general charitable intention’ see 15.44–15.61.

78. See P Luxton, ‘Cy-près and the Ghost of Things That Might Have Been’ [1983] Conv 107 at 109–10.
79. If it could properly be said that all charitable gifts are presumed, subject to contrary intention, to exhibit a
general charitable intention, there would in practice be no difference in principle between cases of initial
and subsequent failure. Yet the courts have not gone so far, at least not in unequivocal terms: see 15.48. On
the other hand, there are cases of subsequent failure in which the courts have sought a general charitable
intention. If these cases were to correctly state the law (which they do not: see note 70 above), again the
principles of law would be the same in both cases.
80. Re Woollnough [1953] Tas SR 25 at 29 per Morris CJ; Re Leitch (deceased) [1965] VR 204 at 206 per Adam J;
Re Payling’s Will Trusts [1969] 3 All ER 698 at 700 per Buckley J; Re Tyrie (deceased) [1970] VR 284 at
266–7 per Gowans J; Weninger Estate v Canadian Diabetes Association (1993) 109 DLR (4th) 232 at 236 per
Spence J (Gen Div(Ont)).
81. Attorney-General v Bray (1964) 111 CLR 402 at 418; BC6400450 per Kitto J; Re Leitch (deceased) [1965]
VR 204 at 206 per Adam J.
82. Re Moon’s Will Trusts [1948] 1 All ER 300 at 304 per Roxburgh J; Re Wright [1954] 1 Ch 347 at 360 per
Romer LJ.
83. Re Tacon [1958] 1 Ch 447 at 453–4 per Lord Evershed MR; Re Roberts (1981) 120 DLR (3d) 74 at 79
per McQuaid J (SC(PEI)).
84. Re Tacon [1958] 1 Ch 447 at 454 per Lord Evershed MR; Re Fitzpatrick (1984) 6 DLR (4th) 644 at 650 per
Simonsen J (QB(Man)).
85. Perpetual Trustee Co Ltd v Morehead [1965] NSWR 1690 at 1693 per the Master in Eq.
86. Re White’s Will Trusts [1955] Ch 188 at 193 per Upjohn J; Attorney-General v Bray (1964) 111 CLR 402
at 418; BC6400450 per Kitto J; Attorney-General v Perpetual Trustee Co Ltd (1966) 115 CLR 581 at 601;
BC6600650 per Barwick CJ, Taylor and Owen JJ; Re Hart (deceased) (1972) 3 SASR 147 at 156 per
Mitchell J. Cf Wallis v Solicitor-General for New Zealand [1903] AC 173 at 186 per Lord Macnaghten
(‘where there is an immediate gift for charitable purposes, the gift is not rendered invalid by the fact that
the particular application directed cannot immediately take effect, or will not of necessity take effect within
any definite limit of time, and may never take effect at all’).
87. Re White’s Will Trusts [1955] Ch 188 at 193 per Upjohn J; Re Hart (deceased) (1972) 3 SASR 147 at 156 per
Mitchell J. See, for example, Executor Trustee and Agency Co of South Australia Ltd v Warbey [1971] SASR
255 (whether a gift for ‘a Diocesan Church of England Hospital’ was practicable could not be determined
until the Synod of the Church of England in the Diocese of Adelaide indicated whether or not it was willing
to accept the gift on trust to establish and maintain such a hospital, and so Bray CJ directed an inquiry into
this (at 265), pursuant to which the Synod resolved not to accept the bequest for that purpose: Executor
Trustee and Agency Co of South Australia Ltd v Warbey (No 2) (1973) 6 SASR 336 at 341 per Bray CJ).
367
though it will not extend into the possibility or practicability of fulfilling the charitable purpose
to an indefinite time in the future.88 In carrying out this inquiry, the court discounts subsequent
events properly seen as beyond the contemplation or foreseeability of a reasonable person.89
Importantly, the issue of possibility or practicability must be assessed as at the date of the
deceased’s death, not with the benefit of hindsight.90
For example, in Attorney-General v Perpetual Trustee Co Ltd91 a testator directed that a block
of land be the site for a hospital and that, on the death of his last surviving nephew, the
proceeds of his estate be used to fund the building and maintenance of the hospital. At that
date (1957) the estate proved insufficient to erect and maintain a hospital. The High Court
of Australia held that, at the date of the testator’s death (1897), it could not reasonably have
been foreseen that the funds in question would be insufficient because the fall in value of
money between 1897 and 1957 was not foreseeable.92 Hence, the gift could not be said to
have been impracticable as at the date of the testator’s death, marking the case as one of
subsequent impracticability.93 In Re Moon’s Will Trusts94 a gift to a named church, which was
demolished by war subsequent to the testator’s death, to take effect on the death of the life
tenant, was held to be practicable at the date of the testator’s death because its demolition
could not have been foreseen. Conversely, in Muir v Archdall95 a gift to St Andrew’s Cathedral
Chapter for a new cathedral was held to be impracticable as at the date of the testator’s death
(fail ab initio) because there was, at that date, no prospect of a new cathedral being built within
a reasonable time.
‘Impossibility’ or ‘Impracticability’
Approach to determining ‘impossibility’ and ‘impracticability’
15.20 As the cy-près jurisdiction depends on a charitable purpose being impossible or
impracticable, how ‘impossibility’ and ‘impracticability’ are defined dictates the circumstances
that attract the jurisdiction. The distinction between ‘impossibility’ and ‘impracticability’
is inexact, and as a result the courts adopt the terms almost interchangeably.96 For instance,
‘impracticable’ has been equated to ‘practically impossible’97 and the concept of ‘impossibility’
here has been said to mean ‘something less than physical impossibility’.98 As either constitutes
a ground for curial intervention, any distinction between these concepts is academic.
88. Re White’s Will Trusts [1955] Ch 188 at 193 per Upjohn J.

89. Harris v Skevington [1978] 1 NSWLR 176 at 186 per Hutley JA.
90. Re Tacon [1958] Ch 447 at 456–7 per Lord Evershed MR, at 458–9 per Romer LJ, at 460 per Ormerod LJ;
Perpetual Trustee Co Ltd v Morehead [1965] NSWR 1690 at 1693 per the Master in Eq; Attorney-General
v Perpetual Trustee Co Ltd (1966) 115 CLR 581 at 601; BC6600650 per Barwick CJ, Taylor and Owen JJ.
91. (1966) 115 CLR 581; BC6600650.
92. Attorney-General v Perpetual Trustee Co Ltd (1966) 115 CLR 581 at 601; BC6600650 per Barwick CJ, Taylor
and Owen JJ.
93. The High Court followed the decision in Re Tacon [1958] Ch 447 (involving subsequent events in the form
of inflation and the increase in death duties that were held, in the circumstances of the case, to be beyond
the contemplation of a reasonable person).
94. [1948] 1 All ER 300 at 304 per Roxburgh J.
95. (1918) 19 SR (NSW) 10 at 13–14 per Harvey J.
96. Cf Attorney-General v Church of England Property Trust (1933) 34 SR (NSW) 36 at 54 per Long Innes J
(‘The line of cleavage between impossibility and inexpediency is theoretically distinct, but it is sometimes
difficult to determine whether a particular matter falls into the class of things which are impossible or into
the class of things barely possible but highly inexpedient’).
97. Re Weir Hospital [1910] 2 Ch 124 at 140 per Kennedy LJ. Cf Moss v Smith (1850) 9 CB 94 at 103; 137
ER 827 at 831 per Maule J.
98. Re Trusts of Kean Memorial Trust Fund (2003) 86 SASR 449; [2003] SASC 227; BC200304075 at [55] per
Besanko J. See also Women’s Christian Association v Kansas City (1898) 147 Mo 103 at 127 (‘The necessity
that will authorize and warrant an order from the court deviating from the exact plan as indicated by the
will of the donor, need however be only a reasonable necessity and not an absolute physical impossibility’);
Re Dominion Students’ Trust [1947] Ch 183 at 186 per Evershed J (‘It is not necessary to go to the lengths of
saying that the original scheme is absolutely impracticable’).
368
Typical examples of practical impossibility are those involving bequests that are insufficient
in amount to adequately fulfil their intended purpose,99 that are in favour of institutions that no
longer exist,100 or that are disclaimed by the intended trustee.101 Other examples include gifts
to an institution that no longer carries on the work for which the disposition is expressed,102
and gifts that an institution is prohibited by its constitution from accepting.103
15.21 In time courts have become less stringent in applying the criterion of impossibility, it
being observed that ‘as the years passed the issue of impossibility became less demanding and
the element of proof was applied in a less strict way’.104 ‘Impossibility’ in modern law is usually
widely construed,105 as appears in the case law on gifts for buildings that are not required, and
those dealing with gifts subject to impracticable conditions, each discussed below. Even so,
the general law maintains a distinction, not always easy to draw, between the impossible or
impracticable, on the one hand, and the merely desirable or expedient, on the other. Courts
have emphasised that ‘impracticable’ is not the same as ‘impractical’ or ‘inexpedient’ and have,
as a general principle, refrained from directing cy-près schemes where a purpose is practicable
merely because it might be administered more expediently or beneficially in another way.106
The position is otherwise under statute, as noted above,107 which adopts a laxer threshold for
judicial intervention.
Gifts for buildings that are not required

15.22 A bequest for the purpose of erecting a building in a locality that is not required in that
locality, or at least not in the form envisaged by the testator, may fail for impossibility, whether
initial or subsequent. An example of the latter is the case of Parker v Moseley,108 which involved
a trust pursuant to which a public hall had been erected. The hall had become, by reason of its
small size and state of disrepair, totally unsuited to the present needs of the changed character of
the community, leading Starke J to conclude that it was no longer possible to apply the hall in
the exact way the donor had directed.109 An example of initial impracticability in this context
is found in Re Tyrie (deceased),110 where a gift to erect a church was held to be impracticable in
view of evidence of an insufficient congregation to maintain it.
99. See, for example, Re Burton’s Charity [1938] 3 All ER 90; Re Good’s Will Trusts [1950] 2 All ER 653 at 654
per Wynn-Parry J; Attorney-General v Bray (1964) 111 CLR 402 at 419; BC6400450 per Kitto J; Re Dutton
[1968] SASR 295 at 297 per Mitchell J; Re Tyrie (deceased) [1970] VR 264 at 266–9 per Gowans J.
100. See 15.26–15.28.
101. See, for example, Re Packe [1918] 1 Ch 437 at 441 per Neville J; Re Stable (deceased) [1957] St R Qd 90 at
111 per Jeffriess AJ; Re Lysaght (deceased) [1966] 1 Ch 191 at 207 per Buckley J; Re Quaid [1972] QWN 22;
Re Jung (1979) 99 DLR (3d) 65; Re Annandale [1986] 1 Qd R 353 at 359 per Derrington J; Re Bisset (deceased)
[2016] 1 Qd R 211; [2015] QSC 85; BC201502565 at [48] per Mullins J. Yet it may be queried whether
disclaimer should trigger a cy-près scenario (unless the identity of the trustee is essential to the gift itself);
the court may simply appoint another trustee: see 17.20. As to disclaimer by a charity trustee see 17.21.
102. Re Mulcahy (deceased) [1969] VR 545 at 550 per Pape J.
103. Re Ramsden Estate (1996) 139 DLR (4th) 746 at 750–1 per MacDonald CJTD (SC(PEI)) (involving a gift
to found a scholarship for Protestant students, which the donee university was precluded by statute from
accepting, therefore failing for initial impossibility; the presence of a general charitable intention entitled
the court to vary the terms of the gift cy-près so as to permit another body unaffiliated with the university
not so statutorily limited to administer the scholarships).
104. Melbourne Anglican Trust Corporation v Attorney-General [2005] VSC 481; BC200510665 at [21] per
Gillard J. A similar trend has surfaced in the United States: see A Chaevitch, ‘When Charity Meets
Racism: The Story of Cy-près in the United States and England’ (2016) 54 Colum J Trans L 502 at 512–22.
105. Varsani v Jesani [1998] 3 All ER 273 at 280–1 per Morritt LJ.
106. Parker v Moseley [1965] VR 580 at 583 per Starke J; Re Trusts of Kean Memorial Trust Fund (2003) 86 SASR
449; [2003] SASC 227; BC200304075 at [55] per Besanko J.
107. See 15.2.
108. [1965] VR 580.
109. Parker v Moseley [1965] VR 580 at 584–5.
110. [1970] VR 264 at 266–7 per Gowans J.
369
Impracticable conditions
15.23 As a general principle, it has been judicially observed that ‘[i]f one is given a gift for
a certain purpose or on certain conditions, then if one accepts the gift one must comply with
the conditions’ and that ‘[i]f one does not like the conditions, one does not accept the gift’.111
Courts in charity law cases have supplied various means to circumvent the strict application
of this principle. Purely on a process of construction the court may overcome a condition
otherwise offensive to the donee.112 Adopting an analogous approach, it may be open to
the court to dispense with a problematic condition attached to a charitable gift if it considers
the condition is not essential, or even repugnant,113 to the donor’s main purpose in making the
gift. In Re Robinson,114 for example, involving a bequest to endow a church on the condition
that a black gown be worn in the pulpit, evidence was adduced that use of that gown was
practically unknown in the diocese, and could alienate the congregation (in being seen as an
act of eccentricity). P O Lawrence J held that the testatrix’s main object in making the gift was
to foster the teaching and practice of evangelical doctrine and services. As the condition would
operate so as to defeat that object, it could be dispensed with.
15.24 Conditions may be construed as impracticable even in circumstances where they
would not undermine the entire purpose of the gift. For example, in Matter of Stuart,115 where
books and artwork were bequeathed to a library to be exhibited free of charge but never on
Sundays, the Surrogate’s Court of New York found the restriction on Sunday exhibition to be
impracticable. In so ruling, Foley J reasoned as follows:116
The passage of time since the death of [the testatrix] in 1891 and the changed and liberalized
conditions throughout this long period of over fifty years, justify … the relaxing of the restrictions
imposed as to the preservation, maintenance and exhibition of the collection and particularly
the prohibition against its exhibition on Sunday. The building of The New-York Historical
Society is open to the public each day of the week. In the period prior to [the testatrix’s] death
… libraries, museums and institutions having public exhibits were in most cases closed on
Sundays. Today most of them, if not all, are open to the public on Sundays. It is a well-known
fact that attendance at such exhibitions in the city of New York is proportionately much greater
on Sunday than on any other day of the week. It is stated that it would be impracticable to find
an institution with adequate facilities for housing the collection and with the needed staff of
attendants to take proper care of it, that would undertake its exhibition if the exhibit had to [be]
closed on Sundays.
The court therefore acceded to the library’s request that it be authorised to loan the collection
to a historical society, which was patronised on Sundays.
15.25 So far as impracticable conditions are concerned, English, Canadian and American
case law is littered with gifts for (mainly) educational purposes subject to gender, racial and/or
111. Permanent Trustee Co Ltd v Attorney-General (SC(NSW), Young J, 12 December 1994, unreported)
BC9403435 at 6.
112. See, for example, Ebitz v Pioneer National Bank (1977) 361 NE 2d 225 at 227 (where the terms of a
testamentary charitable trust ‘to aid and assist worthy and ambitious young men to acquire a legal
education’ was construed by the majority of the Supreme Judicial Court of Massachusetts to extend
to female law students; the construction does, however, seem strained, as appears from the dissenting
judgment: at 229).
113. Whether the court’s jurisdiction to settle a scheme is really necessary in this context may be queried given
that, in the case of an absolute gift of real or personal property to which a condition repugnant to the gift
attaches, the general law dictates that the condition be treated as wholly void, the donee taking the gift free
of it: Re Goode (deceased) [1960] VR 117 at 121 per O’Bryan J.
114. [1923] 2 Ch 332.
115. (1944) 46 NYS 2d 911.
116. Matter of Stuart (1944) 46 NYS 2d 911 at 915.
370
religious conditions. On occasion it is public policy that has attracted judicial intervention,117
in which case there is scope to view the condition as being illegal rather than merely
impracticable.118 Conversely, there are instances in the case law upholding discriminatory
conditions that give effect to affirmative action or positive discrimination.119
The paucity of Australian cases may owe to the exemption from anti-discrimination
legislation of a discriminatory provision in a deed, will or other instrument that provides for
charitable benefits, or an act done in order to give effect to such a provision.120 It follows that
testators can, generally speaking, ‘be as capricious as they like and that if they wish to benefit
a charity in respect of, or even of, a discriminatory group, they are at liberty to do so’.121
There is no equivalent exemption in the Australian Capital Territory legislation. In any
event, it is unlikely that the exemption precludes an educational institution that wishes to take
a gift free of a discriminatory condition122 approaching the court arguing that the condition
is impracticable to achieve the donor’s main object123 or is otherwise not essential to that
117. See, for example, Canada Trust Co v Ontario Human Rights Commission (1990) 69 DLR (4th) 321 (CA(Ont))
(involving scholarships setting eligibility requirements based on race, religion, ethnic origin and sex;
Robins JA remarked (at 336) that ‘while the trust was practicable when it was created, changing times have
rendered the ideas promoted by it contrary to public policy and, hence, it has become impracticable to carry
it on in the manner originally planned by the settlor’); Home for Incurables of Baltimore City v University
of Maryland Medical System Corporation (2002) 797 A 2d 746 (involving a bequest to a private non-profit
hospital to construct a new building for ‘white patients who need physical rehabilitation’; the Maryland
Court of Appeals found the condition invalid for infringing public policy, and ordered that it be excised).
Cf Matter of Wilson (1983) 452 NE 2d 1228 (where the New York Court of Appeals upheld a trust to provide
for the educational expenses of male students, reasoning that ‘while the restrictions in the trusts before
this court may run contrary to public efforts promoting equality of opportunity for women does not justify
imposing a per se rule that gender restrictions in private charitable trusts violate public policy’: at 1234);
University of Victoria v British Columbia (2000) 185 DLR (4th) 182; [2000] BCSC 445 (involving a bursary
for Roman Catholic students at a university, Maczko J held that ‘a scholarship or bursary that simply restricts
the class of recipients to members of a particular religious faith does not offend public policy’: at [25]).
118. As to gifts contrary to public policy see 3.46–3.52.
119. See, for example, Re Esther G Castanera Scholarship Fund (2015) 314 Man R (2d) 291; [2015] MBQB
28 (where Dewar J upheld a scholarship confined to female tertiary science students by reason of being
motivated ‘by a desire to promote women in a field which historically was a male-dominated field’ (at [37]),
adding that ‘[w]here the gift can be articulated as promoting a cause or a belief with specific reference to a
past inequality, there is nothing discriminatory about such a gift’: at [44]).
120. See 7.20.
121. Kay v South Eastern Sydney Area Health Service [2003] NSWSC 292; BC200301648 at [18] per Young CJ in
Eq.
122. That the courts can, in establishing a cy-près scheme, expand the application of a charitable fund or property
to avoid what, in other contexts, could amount to illegitimate discrimination (see, for example, Roman
Catholic Trusts Corporation for the Diocese of Melbourne v Attorney-General [2000] VSC 360; BC200005645,
noted at 15.74), aligns with this view.
123. See, for example, the following cases in which racial and religious conditions applicable to educational
purposes were removed because they functioned to defeat the main educational object of the donor:
Re Dominion Students’ Hall Trust [1947] 1 Ch 183 at 186 per Evershed J (removal of ‘colour bar’ for admission
to a students’ hostel because it was inconsistent with the main object of the hostel); Re Lysaght (deceased)
[1966] 1 Ch 191 at 209 per Buckley J (removal of religious exclusionary condition to eligibility for medical
studentships because it operated to defeat the paramount intention of the testatrix); University of British
Columbia v Attorney-General (2008) 171 ACWS (3d) 976; [2008] BCCA 367 (effect given to a bequest to
provide scholarships for deserving students ‘who are British subjects and non-Roman Catholics’ in need of
financial assistance to attend the university by deleting the phrase in quotation marks). Cf Race Relations
Act 1976 (UK) s 34 (a gift that is racially discriminatory is denuded of its racial condition, and is applied for
its intended ultimate beneficiaries except without that condition: see Re Harding (deceased) [2008] Ch 235;
[2007] EWHC 3 (Ch) at [19]–[27] per Lewison J, who upheld a gift in trust for ‘the Black community’ in
four specified London boroughs on the basis that the reference to colour be removed); A Chaevitch, ‘When
Charity Meets Racism: The Story of Cy-près in the United States and England’ (2016) 54 Colum J Trans L
502 at 519 (who criticises the relevant provision for, inter alia, striking only colour from the gift, leaving
other forms of discrimination untouched, while at the same time eliminating all discrimination without
regard for the type of discrimination that is permitted, say, for remedial purposes)).
371
124
object. After all, the law, it has been said in this context, ‘regards the kernel rather than
the shell’.125 What the statute precludes, it seems, is an appeal to public policy by itself to
free the gift of an otherwise permissible condition. In any event, independent of statute an
American court has cautioned that:126
[a] provision in a charitable trust that is central to the testator’s or settlor’s charitable purpose, and
is not illegal, should not be invalidated on public policy grounds unless that provision, if given
effect, would substantially mitigate the general charitable effect of the gift.
Non-Existent Institutions
15.26 A bequest to an institution that has never existed lapses unless it can be inferred from
how the institution is described that the donor intended to benefit a charitable purpose — that
is, the donor exhibited a general charitable intention — which enables the gift to be applied
cy-près.127 Such a gift will not lapse, in the alternative, if the evidence satisfies the court that
it was a misdescription and the court can ascertain the object with the requisite degree of
certainty. Each of these points is discussed in turn below.
Application cy-près
15.27 That the donee is an institution that has never existed precludes the court resorting to
its objects and activities to determine whether or not the testator exhibited a general charitable
intention.128 The court must therefore resort to the testator’s description, together with its
location in the context of the entire will. Gillard J stated the relevant principle in Re Daniels
(deceased):129
Where a gift, and in particular a residuary gift, is made by a testator to a non-existent body, but
from the description of the body set out by the testator in his will, it may be assumed that the
testator intended it to be a body carrying on a charitable activity, then a Court of Equity would
lean in favour of finding a general charitable intention from the slightest indication in the will
to save the gift from lapse and would direct either generally a scheme cy-près to be worked out
subsequently in chambers, or to adopt a scheme of its own by division amongst claimants who
might be within the general charitable intent to be discovered in the will.
Some 70 years earlier Buckley J had similarly remarked that, in cases of gifts to non-
existent institutions, the court ‘is more ready to infer a general charitable intention than to
infer the contrary’.130 In fact, a Canadian judge has gone so far as to say that ‘the mere fact
that the institution is fictional will … allow the Court to imply the general charitable intent
necessary to invoke the cy-près doctrine’.131 Whether or not this truly represents the leniency
124. See, for example, Howard Savings Institution v Peep (1961) 170 A 2d 39 (bequest to a college to provide
scholarships for ‘deserving American born, Protestant, Gentile boys of good moral repute, not given to
gambling, smoking, drinking or similar acts’; due to the religious restrictions, the college declined the
bequest as contrary to its charter, but the Supreme Court of New Jersey removed the religious restriction,
reasoning that it was not essential to the donor’s primary purpose); Lockwood v Killian (1979) 425 A 2d 909
(scholarship open only to needy and deserving caucasian boys who profess themselves to be Protestant
Congregationalists; the Supreme Court of Connecticut opined that ‘all of these restrictions cannot be
practically exercised and still carry out the dominant intent of the testator’ (at 912), but elected to remove
only the racial and gender restrictions in order to ‘have the least effect on the testator’s intent’: at 913).
See further D Luria, ‘Prying Loose the Dead Hand of the Past: How Courts Apply Cy-près to Race, Gender,
and Religiously Restricted Trusts’ (1986) 21 USF L Rev 41; A Chaevitch, ‘When Charity Meets Racism:
The Story of Cy-près in the United States and England’ (2016) 54 Colum J Trans L 502.
125. Re Mears’ Estate (1930) 149 A 157 at 157.
126. Matter of Wilson (1983) 452 NE 2d 1228 at 1233.
127. Re Carmichael [1936] St R Qd 196 at 209 per Henchman J; Re Pettit [1988] 2 NZLR 513 at 546 per Chilwell J.
129. [1970] VR 72 at 76.
130. Re Davis [1902] 1 Ch 876 at 881.
131. Re Barnes (1976) 72 DLR (3d) 651 at 656 per Greschuk J (SC(Alta)).
372
with which charity law approaches non-existent institutions (especially in view of the stricter
test for general charitable intention sometimes evident in cases of institutions that cease to
exist prior to the testator’s death),132 courts have been reticent to allow gifts to non-existent
institutions to lapse. The following cases illustrate the courts’ approach.
In Re Davis133 the interpolation of a bequest to the non-existent ‘Home for the Homeless’
between gifts to the blind, deaf and dumb, and to orphans and the sick, was held to be ‘the
plainest indication that the testatrix intended that her charitable purposes should not fail
because she had made some mistakes as to the person to whom she had directed the legacy to be
paid’. Similarly, in Re Daniels (deceased)134 a bequest to a ‘Spastic Children’s Home, Frankston’,
which had never existed, was applied cy-près because the will provided for the division of
the residue between ‘charities’, and the description of the intended beneficiary suggested an
institution devoted to a charitable purpose.
In Re Constable (deceased)135 a gift to a non-existent institution, ‘The Methodist Homes
for the Aged at Cheltenham’, was held by Pape J to display a general charitable intention.
His Honour found three indicators of such an intention: first, the gift was for the purpose of
providing assistance and relief for aged persons in need of a home and did not depend upon the
existence of a particular form of institution; second, no institution provided the type of service
the testatrix visualised that in all respects complied with her requirements; and third, it was
a gift of residue and the court leans against an intestacy and strives to save a charitable gift.136
Though the first and second of these indicators were directed at dispelling any doubt that the
testatrix had intended a purpose gift as opposed to one directly to individuals,137 it is unclear
as to why, given the terms of the gift, such a suggestion needed dispelling. Also, to suggest that
simply because a donor has specified a non-existent institution indicates that the gift is not
dependent on the existence of a particular form of institution appears a large step to make. If
the testatrix was in reality concerned by the lack of an institution providing the type of service
she visualised, it appears odd to donate to an institution she knew did not exist rather than
donating for the purpose of establishing an institution of the kind she had in mind. Pape J’s
convoluted reasoning stands in stark contrast to a statement earlier in his judgment ‘that where
the nature and purpose of the gift is clearly charitable, that is of itself a sufficient indication of
a general charitable intent’.138
132. See 15.68, 15.69.

133. [1902] 1 Ch 876 at 885 per Buckley J. See also Re Carmichael (deceased) [1936] St R Qd 196 at 210–11 per
Henchman J; Re Harwood [1936] 1 Ch 285 at 288 per Farwell J (no difficulty in finding general charitable
intention in bequest to non-existent ‘Peace Society of Belfast’); Re de Little [1943] St R Qd 31 at 36–8 per
Webb CJ; Re Bertling (deceased) [1956] St R Qd 379 at 387–8 per Macrossan CJ; Re E M Murray (deceased)
[1964-5] NSWR 121 at 122–3 per Hardie J (gift to pay residuary estate on trust to the non-existent ‘English
Cancer Appeal Fund’ suggested that the testatrix’s dominant intention was to ensure that her estate was
made available for research into causes and treatment of cancer); Re Barnes (1976) 72 DLR (3d) 651 at
655–9 per Greschuk J (SC(Alta)) (bequest to non-existent Hungarian Research Council of Hungary in
Budapest held to exhibit general charitable intention); Re Pace (deceased) (1985) 38 SASR 336 at 341
per Cox J; Perpetual Trustees Tasmania Ltd v Attorney-General [2002] TASSC 16; BC200201592 (general
charitable intention evident from bequest to the non-existent ‘Head Office in Australia of the Australian
Anti Cancer Society/Research for their research activities’); Public Trustee v Attorney-General [2005]
NSWSC 1267; BC200510701 at [18], [19] per Gzell J (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
— held to display a general intention to benefit charity).
134. [1970] VR 72 at 78–9 per Gillard J. See also Re Knox [1937] 1 Ch 109 at 112–13 per Luxmoore J (which
involved the residue of an estate divided into four equal shares, three of the objects being charities, leading
the court to infer a general charitable intention regarding the fourth that had never existed); Re Kerr
(deceased) [1957] St R Qd 292 at 301 per Moynihan AJ. The relief of persons with mental disability is
a charitable purpose: see 8.33.
135. [1971] VR 742.
136. Re Constable (deceased) [1971] VR 742 at 746.
137. Cf Re Mulcahy [1969] VR 345.
138. Re Constable (deceased) [1971] VR 742 at 746.
373
15.28 It is noteworthy that in each of the above cases the very title or description of the
non-existent institution targeted the first head of charity, namely the relief of the poor, aged
or impotent. The courts rightly consider that if a bequest is made to an institution that, by
virtue of its title, is directed to recognised charitable objects, the testator intended to benefit
charitable objects. The courts’ presumption that bequests for ‘religious’ or ‘church’ purposes
are exclusively charitable,139 and that gifts to educational institutions are necessarily for the
advancement of education,140 means that the same logic can be applied in respect of gifts to
non-existent institutions the description of which exhibits an evident religious or educational
character. It could presumably also be applied in respect of institutions that would clearly come
within the fourth head of charity, such as those directed towards the relief of human distress141
or the prevention of cruelty to animals.142 However, as the charitable purposes encompassed
by the fourth head of charity are not closed,143 and have fewer defined boundaries, a court may
be justified in adopting a more cautious approach in finding a general charitable intention in a
gift to a non-existent institution the charitable character of which is equivocal. After all, the
cy-près doctrine is not a vehicle to extend the categories of charitable purposes.
There are, accordingly, limits to the courts’ benevolence in construing gifts to non-existent
institutions as revealing a general charitable intention. The name of the institution specified
may be too vague to attribute to the donor a charitable intention. An example is Re Fraser
Estate,144 where a bequest to ‘an Ethiopian Youth Scholarship Fund’, which could not be found,
lapsed for being ‘insufficiently general on its construction to permit the Court enough latitude
to direct a cy-près scheme’.
Misdescription and the problem of multiple claimants

15.29 If, on the evidence, the court is convinced that the donee institution, rather than being
non-existent, is simply misdescribed, there is no need to find a general charitable intention, and
the cy-près doctrine is irrelevant.145 This is because the court is not applying the gift to an object as
near as possible to the donor’s purpose, but to the donor’s actual purpose. There is consequently no
need for the court-approved variation of trust that is part and parcel of a cy-près scheme; primarily
pursuant to its statutory power to rectify a will to reflect the testator’s intention,146 the court can give
effect to the gift. The misdescription scenario can encompass where the same institution continues
to operate but under another name,147 where the testator has used an abbreviation for the name of
the institution,148 as well as the standard case of a simple misnomer in naming the institution.149
139. See 10.10.

140. See 9.6–9.8.
141. See 11.10, 11.11.
142. See 11.34–11.42.
143. See 11.1.
144. (2000) 191 Nfld & PEIR 76; [2000] PESCTD 27 at [8] per MacDonald CJ.
145. Fort Sackville Foundation v Darby Estate (2010) 287 NSR (2d) 158; [2010] NSSC 27 at [10] per Moir J (‘the
courts avoid disturbing a gift just because the testator got the name wrong’).
146. Wills Act 1968 (ACT) s 12(2); Succession Act 2006 (NSW) s 27(1)(b); Wills Act 2000 (NT) s 27(1)(b);
Succession Act 1981 (Qld) s 33(1)(b); Wills Act 1936 (SA) s 25AA(1); Wills Act 2008 (Tas) s 42(1)(b);
Wills Act 1997 (Vic) s 31(1)(b); Wills Act 1970 (WA) s 50(1)(b). As to the application of these provisions
see G E Dal Pont and K F Mackie, Law of Succession, LexisNexis Butterworths, Australia, 2013, [2.62]–[2.77].
147. See, for example, Cram Foundation v Corbett-Jones [2006] NSWSC 495; BC200603747 at [27] per Brereton J.
In the alternative, this could be seen as a successor institution scenario: see 15.6–15.10.
148. See, for example, Provost and Scholars of Queen’s College, Oxford v Sutton (1842) 12 Sim 521; 59 ER 1233
(where the will referred to the ‘Provost and Fellows of Queen’s College’); Gerhady v South Australian
Auxiliary for the British & Foreign Bible Society Inc (No 3) (1986) 44 SASR 195 (where the testator used
short expressions for beneficiaries such as ‘British & Foreign Bible Society’ and ‘New Guinea Mission
Work’, which Legoe J stated referred to the first defendant, and to the Lutheran Church of Australia Inc
which performed New Guinea Mission Work).
149. See, for example, Price v Attorney General for Western Australia [2014] WASC 430; BC201409726 at [29] per
Chaney J (gift to the ‘Australia Conservation Foundation’ as opposed to the (correct) ‘Australian Conservation
Foundation’); Re Harte [2015] WTLR 1735; [2015] EWHC 2351 (Ch) at [17], [18] per Judge Hodge QC
(incorrect naming of a charitable institution otherwise identifiable by its charity number or address).
374
150
The more trivial the misdescription, say, a mere change of address, the more likely the court
will attribute an intention to benefit an existing institution. Where the alleged misdescription
is more than trivial, or where it could be construed as potentially applying to two or more
institutions, the court may ‘take into account extrinsic evidence of surrounding circumstances
that would assist in making the required identification’.151
15.30 Evidence of a testator’s inter vivos contributions to a certain institution under
a particular name, or that he or she referred to it by a particular name, is admissible to show
that by use of that name in the will was meant to refer to that institution.152 In Re Tharp153 the
testatrix made a bequest to ‘The Tangier Society for the Prevention of Cruelty to Animals, care
of the Dispensary for Sick Animals’. The evidence showed that there existed a ‘Dispensary for
Sick Animals’ that had established a branch organisation at Tangier, which branch no longer
existed. Documentary evidence revealed that the testatrix had regularly subscribed to a fund
she called the ‘Tangier Fund’, which had been sent to the secretary of the Dispensary. In view
of this evidence, the English Court of Appeal ruled that the bequest was clearly intended for
the Dispensary being earmarked for the work of its Tangier branch.154
The testator’s knowledge and location, as well as the nature of the misdescription, will
impact on the court’s approach. For example, in Re Chanter (deceased)155 the testatrix, who
made her will and died in England, made a bequest to the non-existent ‘Adelaide Art School’.
In Adelaide there existed an institution known as the ‘South Australian School of Arts and
Crafts’ that was formerly known as the ‘Adelaide School of Art’. Mayo J expressed confidence
that the school the testatrix intended was the ‘South Australian School of Arts and Crafts’,
especially as she made her will and died overseas, and that confusion of ‘Adelaide’ and ‘South
Australian’ was not an uncommon type of error.156
15.31 In cases where two or more competing institutions are claimants, the court seeks to
ascertain, not whether the claimants are within the nominal description of the donee, ‘but
whether the activities they carry on are within or correspond with the purposes disclosed by
the inaccurate description of the donee in the bequest’.157 If the court is not satisfied that any
of the claimants are necessarily the actual institution that the donor intended to benefit, the
case becomes one of a non-existent donee. But this does not prevent the court from settling
a cy-près scheme to apply the bequest in favour of each of the claimants equally if this gives
effect to the donor’s general charitable intention and is consistent with the terms of the will.158
Otherwise, the court may apply the bequest to other objects cy-près if a general charitable
intention can be inferred.159
15.32 The accurate use of a name of an institution by a donor creates a strong presumption
against any rival not the possessor of that name, which can be overcome only in exceptional
150. Re Wedgwood [1914] 2 Ch 245 at 249–50 per Joyce J.

151. Re Pace (deceased) (1985) 38 SASR 336 at 339 per Cox J. See also Hood v Attorney-General [2006] WASC
157; BC200606471 at [27]–[29] per Hasluck J.
152. Re Guidi (deceased) [1948] SASR 207 at 214–15 per Reed J.
153. [1943] 1 All ER 257.
154. Re Tharp [1943] 1 All ER 257 at 260 per Lord Greene MR. See also Re Vosz [1926] SASR 218 at 236–7 per
Murray CJ.
155. [1952] SASR 299.
156. Re Chanter (deceased) [1952] SASR 299 at 303.
157. Re Constable (deceased) [1971] VR 742 at 744 per Pape J.
158. Re Alchin’s Trusts (1872) LR 14 Eq 230; Re Songest (deceased) [1956] 2 All ER 765 at 767–8 per
Lord Evershed MR; McCormack v Stevens [1978] 2 NSWLR 517 at 519 per Kearney J; Re Pace (deceased)
(1985) 38 SASR 336 at 341 per Cox J; Re Annandale [1986] 1 Qd R 353 at 360 per Derrington J; Murdoch
v Attorney-General (SC(Tas), Zeeman J, 4 August 1992, unreported); Perpetual Trustees Tasmania Ltd v
Attorney-General [2002] TASSC 16; BC200201592 at [13] per Evans J.
159. Re Harwood [1936] 1 Ch 285 at 288–9 per Farwell J; Re Constable (deceased) [1971] VR 742 at 743–4 per
Pape J. As to the courts’ approach in this context see 15.44–15.69.
375
160
circumstances. However, consistent with the foregoing, where a bequest is made to a charity
by a name or description common to two or more institutions, the court will ordinarily divide
the bequest equally between those institutions unless, by means of extrinsic evidence, it is
satisfied that the testator intended one of those institutions to take it exclusively.161 Conversely,
a bequest to two institutions in equal shares, which are in fact the one institution, will generally
be applied for the benefit of that one institution.162
Donation Cases
General law and statutory jurisdiction
15.33 Where money donated or subscribed for an identified charitable purpose163 exceeds that
required to fulfil that purpose, or cannot otherwise be applied for that purpose, the destination
of the (excess) moneys must be determined. The general law recognises three possible options
for the destination of those funds: to revert to the donors, to pass to the Crown as ownerless
goods (bona vacantia), or to be applied cy-près. The issue of determining which option applies
in a given situation is discussed below.
Statute in all States impacts on the general law discussed in this part. In New South Wales
specific legislation vests in the Chief Executive Officer of the NSW Trustee and Guardian
(formerly the Public Trustee) the power to apply dormant funds collected for charitable
purposes for other purposes.164 In Queensland the Charitable Funds Act 1958 makes detailed
prescription for the application of charitable donated funds,165 as does legislation in Tasmania
and Victoria.166 In South Australia and Western Australia statute empowers the Governor
to apply funds collected pursuant to a licensed collection for other charitable purposes in
defined circumstances.167 The preceding legislation also applies in priority to the more general
statutory provisions that prescribe the circumstances in which the original purposes of the trust
or gift can be varied.168
The general law, however, retains some relevance in donation cases. Most obviously, it
remains the law in the Territories. The Charitable Funds Act 1958 (Qld) is expressed to apply
in addition to the general law, not in its place.169 And it is arguable that the general law concept
of ‘failure’ of a charitable purpose remains relevant in Tasmania and Victoria.170 Aside from this,
the statutory provisions oust the general law. Having said this, an understanding of the general
law remains useful because the statutorily prescribed circumstances that attract the jurisdiction
largely mirror those recognised at general law.
160. National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty
to Children [1915] AC 207 at 212–13 per Earl Loreburn.
161. See, for example, Re Fowles (deceased) [1968] QWN 49; Hood v Attorney-General [2006] WASC 157;
BC200606471.
162. Re Cain (deceased) [1950] VLR 382 at 393 per Dean J.
163. If the money is given to a non-charitable purpose, or to a society that is not a charity, in which case there
is an excess of funds, the excess cannot be applied cy-près — the only options being a resulting trust or
an application bona vacantia: Cunnack v Edwards [1896] 2 Ch 679; Re Gillingham Bus Disaster Fund [1958]
1 Ch 300 at 314 per Harman J.
164. See 16.16–16.19.
165. See 16.20–16.26.
166. As to the Tasmanian and Victorian legislation see 16.28, 16.29. There is equivalent legislation in
New Zealand: Charitable Trusts Act 1957 (NZ) Pt 4 (see G E Dal Pont, Charity Law in Australia and
New Zealand, OUP, Melbourne, 2000, pp 340–4).
167. See 16.27.
168. These provisions are discussed at 16.1–16.14. As to the relationship between these provisions and the
general law see 15.2, 15.3.
169. Charitable Funds Act 1958 (Qld) s 3: see 16.25.
170. See 16.29.
376
‘Out and out’ gift or return to donors?

15.34 The usual starting point is to inquire whether the (excess) funds should be returned to
the donors. If the court concludes that the donors did not intend to part with their donation
‘out and out’, but only for the specified purpose, the donors are entitled to be refunded their
donation, reduced by a proportionate quantum of any expenses to which the fund has already
been applied.171 This is effected via a resulting trust,172 which serves to fill a void in beneficial
ownership of money or property. In other words, it is presumed that the donors did not intend
to part with the beneficial ownership of their donation except to the extent that it was applied
for the specified purpose. That it is difficult to identify the donors does not prevent the court
from applying this doctrine, for it may order an inquiry into their identity.173
As a donor rarely if ever expressly stipulates an expectation that his or her donation be
returned in prescribed circumstances, any such intention must be inferred from the nature of
the fund to which, and the manner in which, the donation was made. As to the former, a donor
who gives money to a fund raised for a sole and exclusive charitable purpose, with nothing
beyond the bare fact of the gift to indicate his or her intention, is ordinarily presumed to have
donated the sum for that sole and exclusive purpose.174 As to the manner in which the donation
is made, that individual donors’ names and donations were recorded and acknowledged makes
it more difficult to infer that the donations were regarded as ‘out and out’ gifts.175 The converse
dictates that, for donations not recorded by name (say, donations made at public functions and
street collections), it is unlikely that the donors intended to retain a beneficial interest; they
are therefore presumed to have been given ‘out and out’.176
15.35 The foregoing are not inflexible rules, though. First, an anonymous donor may be
entitled to the return of a donation on proof that he or she in fact subscribed a specified
amount to the fund.177 Second, and more problematic, is the not uncommon scenario where
both named and anonymous donors contribute to a single mixed fund. The problem regards
the extent to which, if any, the fact that the donations are made to a mixed fund should justify
the inference that even named donors intended to give their donation ‘out and out’. Though
there is authority suggesting that such an inference should be made where named donors are
aware that their donations are to be mixed with donations from anonymous donors,178 the
better view is that the court should not impute some more general intention to individual
donors ‘by reason only of the fact of any contemporaneous anonymous donations’.179 This does
not mean that contemporaneous anonymous donations are always irrelevant in determining
named donors’ intentions, but that they are no more than a factor to be taken into account
where evidence of the named donors’ intentions is equivocal.180 Adopting the same logic, that

172. As to resulting trusts generally see Dal Pont, Ch 26.
173. Re Gillingham Bus Disaster Fund [1958] 1 Ch 300 at 314 per Harman J.
174. Re Ulverston and District New Hospital Building Trusts [1956] 1 Ch 622 at 632 per Jenkins LJ.
175. Re Ulverston and District New Hospital Building Trusts [1956] 1 Ch 622 at 634 per Jenkins LJ (‘Prima facie,
the subscriber who gives his name intends to subscribe for the particular and exclusive purpose for which
his subscription has been solicited and none other, and there will be a resulting trust in his favour if that
purpose fails’); Beggs v Kirkpatrick [1961] VR 764 at 768 per Adam J.
176. Re Welsh Hospital (Netley) Fund [1921] 1 Ch 655 at 660–1 per P O Lawrence J; Re Hillier [1954] 2 All
ER 59 at 70 per Denning LJ; Re Ulverston and District New Hospital Building Trusts [1956] 1 Ch 622 at
633 per Jenkins LJ; Beggs v Kirkpatrick [1961] VR 764 at 770 per Adam J; Grant v Attorney-General [2009]
NSWSC 51; BC200900635 at [35] per Bryson AJ.
177. Re Hillier [1954] 2 All ER 59 at 69 per Evershed MR; Re Ulverston and District New Hospital Building Trusts
[1956] 1 Ch 622 at 633 per Jenkins LJ.
178. Re Welsh Hospital (Netley) Fund [1921] 1 Ch 655 at 661 per P O Lawrence J; Re North Devon and West Somerset
Relief Fund Trusts [1953] 2 All ER 1032 at 1036–8 per Wynn-Parry J; Re Hillier [1954] 2 All ER 59 at 70 per
Denning LJ.
179. Beggs v Kirkpatrick [1961] VR 764 at 770 per Adam J (emphasis supplied). See also Re Ulverston and District
New Hospital Building Trusts [1956] 1 Ch 622 at 632, 634 per Jenkins LJ.
180. Re Ulverston and District New Hospital Building Trusts [1956] 1 Ch 622 at 642 per Evershed MR, explaining
his statements in Re Hillier [1954] 2 All ER 59 at 68.
377
some named donors express a desire that their donation should not be returned to them does
not of itself serve to impute an equivalent intention to all named donors.181
15.36 Third, it may be that different inferences of intention can be made depending on
whether the fund fails ab initio (from the outset), in that it is never applied to its intended
purpose, or whether the fund when applied to its intended purpose exceeds what is required.
Jenkins LJ in Re Ulverston and District New Hospital Building Trusts explained the reason for this
as follows:182
The intention of a subscriber might well be that his contribution should be returned in the event
of a total failure ab initio of the purpose for which he made it, but that in the event of a surplus
being left over after that purpose had been duly fulfilled, any share in such surplus which might
be regarded as representing his subscription or some part thereof should be permanently devoted
to charity. In forming his intention as to the fate of his contributions in the latter event … he
might well be influenced by the fact that the inclusion of contributions from anonymous sources,
and the indiscriminate spending of a mixture of anonymous contributions and contributions from
named subscribers, would make it impossible to ascertain whether the whole or any and, if so,
what part of any particular contribution had been spent. In the case of initial failure different
considerations apply, for the whole of the fund is ex hypothesi intact and there has been no
effective application of it for the purpose for which it was raised.
Importantly, the nature of the fund to which the donation was made may provide more
conclusive evidence of intention than the manner of the donation. Lewis v Benson183 provides
an example. The case involved donations to a fund established, inter alia, for the purpose of
erecting and equipping a building for the conduct of a club to benefit members of the armed
services.184 The funds donated exceeded those required for this purpose, and the issue arose
as to the destination of the excess. O’Bryan J held that the vast majority of donors gave their
donations ‘out and out’, adding that:185
If there were some who adverted to the fact that a trust for the members of the forces engaged in
the present war cannot last in perpetuity and who therefore retained some lingering expectation
of a return of their charity when the particular purpose was satisfied, they must be disappointed by
reason of the fact that it is one trust fund that must be administered according to the true intent
to be gathered from the documents which evidence its establishment, and from such surrounding
circumstances as afford a guide to the general intention of the settlors. The true intent to be
gathered from these … is that the trust was one intended to operate in perpetuity, and, having
regard to the fact that the particular purpose I have referred to could in all probability not endure
for many years, and to the more general statements of motives contained in the [pamphlet, the
circular and in the personal letter inviting donations], I am satisfied that the substantial and
dominant object of the trust was a wide one, and that the more specific and limited objective of a
club was no more than a means chosen for the attainment of that wider object.
An alternative way of explaining cases involving excess subscriptions for charitable purposes
is to construe the donations as being subject to a condition that they be used for a specified
purpose. An excess of funds devoted to that purpose, or its failure otherwise, therefore operates
to revert the excess or fund in question to the donor. In Re University of London Medical
Sciences Institute Fund186 the testator bequeathed £25,000 to a fund entitled ‘The Institute
of Medical Sciences Fund, University of London’, which had been instituted by voluntary
contributions during the testator’s lifetime, but subsequently proved unable to effect its object.
The English Court of Appeal directed that the contributions be returned to the various donors.

182. [1956] 1 Ch 622 at 636. Cf Murray v Thomas [1937] 4 All ER 545 at 550 per Clauson J (failure ab initio held
an ‘out and out’ gift applicable cy-près); Re Trust Deed Relating to the Darwin Cyclone Tracy Relief Trust Fund
(1979) 39 FLR 260 (held subsequent surplus applied cy-près).
183. [1944] VLR 106.
184. As to the charitable status of providing benefits to the armed services see 11.12–11.17.
185. Lewis v Benson [1944] VLR 106 at 110.
186. [1909] 2 Ch 1.
378
Vaughan Williams LJ could find ‘only an intention to join in a subscription for the purpose
of instituting a particular school or institute of medicine if a sufficient sum of money can be
raised for this purpose’, and so ruled that ‘this was a gift to take effect upon the happening of a
condition’.187 Farwell LJ noted that ‘the right of the donor to a return of the money arises when
the trust is on the face of it contingent on the proposed institute being called into being’.188
Had the donations been capable of being construed as for a more general purpose, rather
than a ‘specific and well-defined purpose [and] for no general or other purpose whatsoever’,189
the condition could have been treated as not essential to the character of the gift, justifying
a different conclusion.
15.37 Fourth, there is some suggestion in the case law that a donor who claims a tax deduction
for a donation intends to give it ‘out and out’, even though there is, of necessity, a record of his
or her donation.190 This is because tax deductibility is premised on the money or property the
subject of the deduction being a ‘gift’. By definition, a ‘gift’ involves no expectation of anything
in return,191 but the case law to this effect addresses the scenario of some quid puo quo from
the gift rather than an inquiry into whether the donor intended an ‘out and out’ contribution.
Claiming a tax deduction is therefore not conclusive of the donor’s intention so far as a cy-près
application is concerned, although it may well be persuasive.
Application of ‘out and out’ gifts

15.38 If the court determines that any excess subscribed to a charitable purpose, or a fund
that cannot be applied for the specified purpose, is intended as an ‘out and out’ gift, the
question is then whether the excess or fund is to be applied cy-près, or instead given to the
Crown as ownerless goods (bona vacantia). The fund or excess will be administered cy-près if
the donors made the donations with a general charitable intention or, even in the absence of
a general charitable intention, the Attorney-General192 has waived the claim to bona vacantia
and consented to the application cy-près.193
15.39 General charitable intention requires proof that ‘the accomplishment of the particular
purpose did not exhaust the charitable intention of the donor, and that his substantial intention
was to advance some wider charitable purpose, although by means of the particular purpose’.194
There are judicial statements that the fact of an ‘out and out’ gift by itself establishes a general
charitable intention.195 These have been queried,196 the main concern being that, as expressed
by Jenkins LJ in Re Ulverston and District New Hospital Building Trusts:197
I should have thought it at least arguable that such persons intend to subscribe to the avowed
purpose and nothing else, and simply assume that the avowed purpose will in fact be carried out,
without forming any intention at all as to what is to be done with their money in the event of that
purpose becoming impossible of fulfilment.
187. Re University of London Medical Sciences Institute Fund [1909] 2 Ch 1 at 7, 8.

188. Re University of London Medical Sciences Institute Fund [1909] 2 Ch 1 at 9.
189. Re University of London Medical Sciences Institute Fund [1909] 2 Ch 1 at 9 per Kennedy LJ.
190. Re Australian Elizabethan Theatre Trust (1991) 30 FCR 491; Misra v Hindu Heritage Research Foundation Ltd
(SC(NSW), Young J, 21 June 1996, unreported) BC9602674 at 11–12.
191. See 7.18.
192. As to the role of the Attorney-General in respect of charities generally see 14.23–14.26.
194. Beggs v Kirkpatrick [1961] VR 764 at 767 per Adam J. As to the nature of a general charitable intention see
15.44–15.61.
195. See, for example, Re Welsh Hospital (Netley) Fund [1921] 1 Ch 655 at 661 per P O Lawrence J; Re Hillier
[1954] 2 All ER 59 at 68 per Evershed MR, at 70 per Denning LJ.
196. Re Ulverston and District New Hospital Building Trusts [1956] Ch 622 at 633–4 per Jenkins LJ; Beggs
v Kirkpatrick [1961] VR 764 at 767–8 per Adam J.
197. [1956] Ch 622 at 633–4.
379
Yet simply because a donor does not intend the return of a donation, though not conclusive
evidence of a general charitable intention, is hardly conclusive evidence that the donor
intended it to be forfeited to the Crown. Given that the donation was made to a charitable
purpose, there are stronger grounds for inferring that the donor intended to apply any excess
to another charitable purpose than to the coffers of government. This approach avoids the
additional step of finding a general charitable intention once it has been established that the
donation was made ‘out and out’. As the charitable intention of the donor is inherent in
the latter inquiry, to reintroduce it once it is found that the donor did not intend to retain
beneficial ownership in the donation adds unnecessary complexity to the law. The better view
is to avoid issues of intention at this stage, which involve considerable artificiality in any
event,198 in favour of a presumption that money given to a charitable purpose ‘out and out’
is given with a general charitable intention.199 This view is also consistent with the courts’
frequently repeated notion that the law favours charity.200
Excess in Charitable Bequests

15.40 Where the quantum of a charitable bequest exceeds that required to achieve its
purpose, the destination of the surplus must be determined. Either it is to be applied cy-près,
or it reverts to the testator’s estate through the vehicle of a resulting trust. The case law is not
uniform in its treatment of these cases. The main issue here is whether a cy-près application
requires proof of a general charitable intention on the testator’s behalf.201
One view is that if the quantum of a bequest for a charitable purpose exceeds that required
for its fulfilment, the case resembles one of initial impracticability, which requires proof of
general charitable intention to avoid lapsing.202 The difficulties with this approach appear in
Re Stanford,203 which involved a bequest to a university on trust to be applied for the express
purpose of completing and publishing a prescribed form of dictionary. The university accepted
the gift and published the dictionary, leaving surplus funds. Eve J held that, because of the
specific purpose to which the bequest was directed, the testator had exhibited no general
charitable intention. No cy-près scheme could therefore be ordered, and the surplus fell to
be dealt with as part of the testator’s residuary estate.204 Yet as the fund had already vested for
a charitable purpose prior to any issue of surplus arising, the case should have been treated as
one of subsequent impracticability, in which any surplus is applied cy-près irrespective of the
lack of general charitable intention.205
15.41 Even if, at the date of the testator’s death, it appears that the quantum of the bequest
exceeds that necessary to fulfil its purpose, there is authority that treats the scenario as one of
subsequent impracticability. In the leading case, Re King,206 a residuary bequest for erecting a
stained glass window in a church in memory of prescribed persons207 proved more than sufficient
for that purpose. Treating the case as one of subsequent impracticability, Romer J applied the
198. As to the artificiality involved in finding a general charitable intention see 15.47.
199. Re British School of Egyptian Archaeology [1954] 1 All ER 887 at 892 per Harman J; Re Hillier [1954] 2 All
ER 59 at 70 per Denning LJ.
200. See 6.1–6.3.
201. As to what is meant by ‘general charitable intention’ see 15.44–15.61.
202. Re Bower [1917] SALR 41 at 48 per Murray CJ; Re Royce (deceased) [1940] 1 Ch 514 at 521–2 per Simonds J.
See 15.4–15.15.
203. [1924] 1 Ch 73.
204. Re Stanford [1924] 1 Ch 73 at 78–9.
205. See 15.16, 15.17.
206. [1923] 1 Ch 243.
207. As to the charitable status of bequests of this kind see 10.14.
380
208
excess cy-près in the erection of further stained glass windows in the same church. Had the
case been viewed as one of initial impracticability, it is unlikely that the court would have
discerned a general charitable intention. Accepting this view dictates that, should it appear at
the date of the testator’s death that the purpose of the bequest does not exhaust its quantum, the
portion of the excess lapses in the absence of proof of a general charitable intention, whereas
should it be unclear whether the application of the bequest will produce an excess, there will
never be a lapse. This seems an artificial distinction.
15.42 Though not emphasised in Re King, that a bequest is residuary in character can also
be seen as a reason for concluding that proof of a general charitable intention is not necessary.
From a residuary bequest, it has been said, can be inferred an intention to part with the whole
of the testator’s property in favour of a charity, from which one may spell out a charitable
intention that can only be effected via the cy-près doctrine.209 That this is not the same
intention as the so-called ‘general charitable intention’ appears from the words of Vaisey J in
Re Raine (deceased):210
[W]here a testator has shown an intention to use the whole of a residue, or the remaining portion
of a residue, for a charitable purpose, it is not necessary to do more than to find that intention,
namely, an intention to part with the whole subject-matter of the residuary gift for a charitable
purpose. It is not necessary to find a general charitable intention in the wider sense in which those
words are sometimes, and perhaps more frequently, used … [W]here one finds a residuary gift out
and out for a charitable purpose, and there is a surplus over and above what is required for that
particular purpose, the overriding intention of a charitable disposition should still prevail, with the
result that the surplus must be applied cy-près …
In other words, the charitable character of the bequest serves to earmark any excess with
a like character. Yet given that proof of a general charitable intention does not underlie this
notion, the only way of framing it within established principle is, as suggested above, to treat
these as cases of subsequent impracticability. Perhaps it is wiser to couch the principle by
avoiding mention of intention at all, as did the Ontario Court of Appeal in Re Tufford,211 to
the effect that where the ‘residue of the estate is to be used for a particular charitable purpose
which is capable of being performed, but that the testator made an error as to the amount of
money required to accomplish that purpose … there can be no resulting trust in favour of the
next of kin’.
15.43 However, should the will itself expressly provide for the destination of any excess
funds,212 or be phrased in terms that reveal a clear intention that a resulting trust is to attach to
any excess, the above will not prevent the court from giving effect to the terms of the will.213
208. Re King [1923] 1 Ch 243 at 246. See also Attorney-General v Mayor of Bristol (1820) 2 Jac & W 294 at
313; 37 ER 640 at 647 per Lord Eldon; Chamberlayne v Brockett (1872) LR 8 Ch App 206 at 211 per
Lord Selborne LC; Re Buck [1896] 2 Ch 727 at 735–6 per Kekewich J; Re Monk [1927] 2 Ch 197 at 210–12
per Sargant LJ, at 215–16 per Lawrence LJ; Re Parker (deceased) [1949] ALR 545 at 546–7 per Fullagar J.
The confusion in this area is typified by Re Robertson [1930] 2 Ch 71, where Bennett J, though purporting to
apply Re King, nonetheless based his decision to apply the surplus of residue money cy-près on the presence
of a general charitable intention: at 73–4.
209. Re Raine (deceased) [1956] 1 Ch 417 at 422 per Vaisey J. See also Re Monk [1927] 2 Ch 197 at 210–12 per
Sargant LJ, at 215–16 per Lawrence LJ.
210. [1956] 1 Ch 417 at 423 (emphasis supplied). Cf Re Bower [1917] SALR 41 at 51 per Murray CJ.
211. (1984) 6 DLR (4th) 534 at 540 per Weatherston JA.
212. Re Monk [1927] 2 Ch 197 at 207 per Lord Hanworth MR, at 210–12 per Sargant LJ, at 215–16 per
Lawrence LJ.
213. Attorney-General v Wilson (1834) 3 My & K 362; 40 ER 138. In any event, the application of funds cy-près
in cases of subsequent impracticability is subject to contrary intention expressed in the will: see 15.17.
381
Distinguishing General From Specific Charitable Intention

15.44 As foreshadowed in the preceding parts of this chapter, whether a testator has expressed
a general charitable intention in making a gift, and thus whether a cy-près jurisdiction is
available, is relevant in three principal types of cases: those of initial impossibility, gifts to non-
existent institutions, and a surplus of donations. The concept of ‘general charitable intention’,
as contrasted with what can be described as a ‘particular charitable intention’, is discussed
below by specific reference to cases of initial impossibility.
The concept of ‘general charitable intention’

15.45 As noted earlier in this chapter,214 proof of a ‘general charitable intention’ is
the precondition for applying cy-près a charitable gift that fails for initial impossibility. If
the testator, in making the gift, instead exhibited a particular (or specific) charitable intention,
the court lacks jurisdiction to settle a cy-près scheme, for to do so would be contrary to the
testator’s intention. The court must, accordingly, distinguish the general from the particular215
or, put another way, distinguish between ‘essential and accidental characteristics’ of the gift.216
15.46 Yet the need to distinguish general from particular charitable intention for this
purpose, beyond often being artificial,217 does not explain why, in a case of particular charitable
intention, the law should assume that it is more likely the donor intended the subject matter
of the gift go to his or her next-of-kin or to the government (as ownerless goods) in the event
of impracticability or impossibility. As the donor has specified a charitable purpose, albeit an
impracticable or impossible one, there is sense in recognising a presumption that it is more
likely that the donor intended the money or property to be used for a purpose as near as
possible (cy-près) to that purpose than to go to his or her next-of-kin or the Crown should
the purpose specified fail. Moreover, for the law to be overly concerned with the supposed
intention (or perhaps more accurately in the case of general charitable intention, the motive)
of the donor in cases of cy-près applications contrasts with the tendency to disregard donors’
intentions (or motives) in determining the charitable status of a gift in the first place.218 Be that
as it may, aside from statutory intervention the general law appears too well entrenched to
escape from the requirement of general charitable intention in this context.
Courts’ attitude to finding general charitable intention
15.47 The process of distinguishing a general from a particular charitable intention, though
repeatedly said to be solely one of construction of the instrument in question,219 is hardly exact
or objective. Dixon J noted that it depends ‘less on the construction of language than upon
an estimate of the relative importance attached to the particular and to the general by the
author of the scheme’.220 Other judges have been more blunt. For example, an English judge
described the search for this distinction as being in many cases to follow a will-o’-the-wisp.221
A South Australian judge opined that in such cases ‘it is often necessary to have recourse to
something approaching more nearly to divination or intuition than to interpretation in the
214. See 15.4.

215. Re Pettit [1988] 2 NZLR 513 at 547 per Chilwell J.
216. Attorney-General v Perpetual Trustee Co (Ltd) (1940) 63 CLR 209 at 226; BC4000019 per Dixon and
Evatt JJ.
217. See 15.47.
218. See 2.8–2.11.
219. Re Wilson [1913] 1 Ch 314 at 321 per Parker J; Muir v Archdall (1918) 19 SR (NSW) 10 at 14 per Harvey J.
220. Royal North Shore Hospital of Sydney v Attorney-General (1938) 60 CLR 396 at 428; BC3800018.
221. Re Woodhams [1981] 1 All ER 202 at 210 per Vinelott J.
382
222
accustomed sense’. There are also many judicial statements lamenting the artificiality and
difficulty of reconciling the authorities in the area.223 For this reason, it is no surprise to find
judicial reminders that ‘it is only principles which create precedents, not decisions on the
particular provisions of particular wills’,224 and that ‘little assistance is to be obtained from
a consideration of decisions on other wills’.225
15.48 Perhaps for this reason, coupled with the law’s reluctance to render a construction
leading to intestacy,226 courts lean to a general charitable intention and ‘accept even a small
indication of the testator’s intention as sufficient to show a gift for a general charitable purpose
and not a particular charitable institution was intended’.227 Though most judges have refrained
from adopting an explicit presumption favouring a general as opposed to a particular charitable
intention, little seems to be required to find a wider charitable purpose as the essential object
of a charitable gift.228 Hammond J in Re Collier (deceased)229 went further, and in line with
recommendations of the Ontario Law Reform Commission,230 seeing it as ‘in the public
interest’ that there be ‘an open recognition of a presumption, as opposed to a construction, in
favour of charity’. Statute in New South Wales has taken the initiative; it states that ‘a general
charitable intention is to be presumed unless there is evidence to the contrary in the instrument
establishing the charitable trust’.231
222. Executor Trustee and Agency Co of South Australia Ltd v Warbey (1973) 6 SASR 336 at 346 per Bray CJ. See
also Howard Savings Institution v Peep (1961) 170 A 2d 39 at 43 (‘the court must make an educated guess
based on the trust instrument and relevant extrinsic evidence as to what he would have intended had he
been aware of the contingency which has frustrated the exact effectuation of his expressed intent’); Scott,
4th ed, vol 4A, §399.2 (‘it is ordinarily true that the testator does not contemplate the possible failure of his
particular purpose, and all that the court can do is make a guess not as to what he intended but as to what
he would have intended if he had thought about the matter’).
223. Re Lawton [1940] 1 Ch 984 at 986 per Simonds J; Attorney-General v Bray (1964) 111 CLR 402 at 422;
BC6400450 per Kitto J (noting that such questions are ‘notoriously difficult’); Executor Trustee and Agency
Co of South Australia Ltd v Warbey (1973) 6 SASR 336 at 345 per Bray CJ; Re Fraser Estate (2000) 191 Nfld
& PEIR 76; [2000] PESCTD 27 at [7] per MacDonald CJ (SC(PEI)). Various commentators have voiced
similar laments: see, for example, R Chester, ‘Cy Pres or Gift Over? The Search for Coherence in Judicial
Reform of Failed Charitable Trusts’ (1989) 23 Suffolk U L Rev 41 at 46 (‘the general intent requirement is
not only unclear but mischievous in its use to prevent the application of cy-près’); A M Johnson, ‘Limiting
Dead Hand Control of Charitable Trusts: Expanding the Use of Cy Pres Doctrine’ (1999) 21 U Haw L Rev
353 at 383 (‘asking an interpreter who is extant in today’s society whether [a long dead donor] had a general
or specific intent … is largely indeterminate’); J K Eason, ‘Private Motive and Perpetual Conditions in
Charitable Name Gifts: When Good Names Go Bad’ (2005) 38 UC Davis L Rev 375 at 425 (‘the general
intent requirement is perhaps the most rhetorically cited but variably applied of the cy-près criteria’).
224. Executor Trustee and Agency Co of South Australia Ltd v Warbey (1973) 6 SASR 336 at 345 per Bray CJ.
225. Attorney-General v Public Trustee (1987) 8 NSWLR 550 at 554 per Hope JA.
226. Re Fitzpatrick (1984) 6 DLR (4th) 644 at 648 per Simonsen J (QB(Man)); Re Findlay’s Estate (1995) 5 Tas R
333 at 342; BC9506698 per Cox CJ.
227. Re Pettit [1988] 2 NZLR 513 at 547 per Chilwell J. See, for example, Re Wyld [1932] SASR 298 at 306 per
Richards J; Re Godfree (deceased) [1952] VLR 353 at 357–8 per Herring CJ; Estate of Liebelt (1983) 32 SASR
138 at 143–4 per Sangster J.
228. Attorney-General v Perpetual Trustee Co (Ltd) (1940) 63 CLR 209 at 227–8; BC4000019 per Dixon and
Evatt JJ; Public Trustee v Attorney-General (1997) 42 NSWLR 600 at 609; BC9705058 per Santow J;
Connery v Williams Business College Ltd [2014] NSWSC 154; BC201401007 at [55] per Slattery J.
229. [1998] 1 NZLR 81 at 95, 96. His Honour also identified what he viewed as valid policy reasons for this
approach in its own right with respect to charity, grounded in: the importance of charities in socio-economic
terms (see 1.20); the fact that in modern times the welfare system has evolved because the voluntary sector
could not fill the demand; in modern days charities often tackle what a conservative bureaucracy or state
will not; and charities are often innovative, and have in some cases even become delivery vehicles for state
programs (see 1.16–1.18): at 95.
230. Ontario Law Reform Commission, Report on the Law of Charities, 1996, p 405 (which justified its
recommendation on the ground that ‘the identification of a general charitable intention is often a costly
and time-consuming matter that results in wasted expenditures in the vast majority of cases because the
intention to benefit charity generally is invariably present’). See also R G Sisson, ‘Relaxing the Dead Hand’s
Grip: Charitable Efficiency and the Doctrine of Cy-près’ (1988) 74 Va L Rev 635 (advocating a strong
presumption of general charitable intent absent a reverter clause or a valid gift over).
231. Charitable Trusts Act 1993 (NSW) s 10(2): see 16.2, 16.3.
383
Definition of ‘general charitable intention’

15.49 For the purposes of the cy-près doctrine, a general charitable intention is not ‘general’
in the sense of being unqualified in any way or confined only to some general head of charity;232
it is general in contrast with the particular charitable intention. This has led the courts to adopt
terms in place of ‘general’ to convey the relevant notion, such as ‘substantial’,233 ‘paramount’,234
‘dominant’,235 ‘predominant’236 and ‘overriding’.237 The use of supposed synonyms, though it
may convey a flavour of the matter, does little to add clarity to the law, for each term carries
slightly different shades of meaning.238 In the final analysis, the court is left with the dilemma
of determining whether any particularity attached to a gift that fails for initial impossibility
operates to deny general charitable intent. In other words, its task is to determine whether the
testator’s paramount, dominant or substantial intention was to gift the property for a general
charitable purpose rather than a particular charitable purpose.239 The courts have formulated
various ‘tests’ for making this determination, perhaps reflecting that ‘no rote formulation
is competent to distinguish, in every case, between a paramount and a specific charitable
intention’.240
One approach is to focus on whether the testator’s paramount or dominant purpose in making
the bequest can ‘be effected independently of the special modus [mode or means] mentioned in
the will’.241 Another way of expressing the same notion is that a general charitable intention
depends upon the designated failed mode of performance of that intention not being an essential
or indispensable (though not necessarily obligatory) condition of the gift.242 Either way, the
aim is to distinguish between the mode or means chosen to attain the donor’s object (particular)
and the purpose of the donor (can be general).243 If the particular mode is the very substance
or essence of the gift, is indispensable to the gift, or the gift cannot be effected independently
of it, it can be said to be the predominant purpose of the gift, and the testator cannot be said
232. New Zealand Guardian Trust Company Ltd v Presbyterian Support [2015] NZAR 922; [2015] NZHC 468;
BC201560675 at [37] per Gendall J (‘There is no requirement that the will-maker evince an intention to
benefit charity generally’).
233. Re Willis [1921] 1 Ch 44 at 54 per Younger LJ; Royal North Shore Hospital of Sydney v Attorney-General
(1938) 60 CLR 396 at 428; BC3800018 per Dixon J; Attorney-General v Perpetual Trustee Co (Ltd) (1940)
63 CLR 209 at 225; BC4000019 per Dixon and Evatt JJ.
234. Re Taylor (1888) 58 LT 538 at 543 per Kay J; Re Wilson [1913] 1 Ch 314 at 320–1 per Parker J; Re Wyld
[1932] SASR 298 at 305 per Richards J; Attorney-General v Bray (1964) 111 CLR 402 at 422; BC6400450
per Kitto J. Where the word ‘paramount’ is used, it means more than merely ‘superior in importance’ and
‘connotes such a degree of dominance that the particularity is dwarfed into insignificance and can be
treated as not forming an essential part of the substance of the gift’: Re McGuire [1941] 1 IR 33 at 37–8 per
Black J.
235. Re Stable (deceased) [1957] St R Qd 90 at 112 per Jeffriess AJ (as opposed to ‘subordinate intention’);
Re Tyrie (deceased) (No 1) [1972] VR 168 at 178 per Newton J; Re Collier (deceased) [1998] 1 NZLR 81 at
93 per Hammond J (preferring the term ‘dominant’ rather than ‘general’ because it conveys a better idea of
the concept).
236. Re Goodson (deceased) [1971] VR 801 at 806 per Adam J.
237. Re Sanders’ Will Trusts [1954] 1 Ch 265 at 273 per Harman J.
238. Re McGuire [1941] 1 IR 33 at 37–8 per Black J.
239. Re Wilson [1913] 1 Ch 314 at 320–1 per Parker J.
240. New Zealand Guardian Trust Company Ltd v Presbyterian Support [2015] NZAR 922; [2015] NZHC 468;
BC201560675 at [40] per Gendall J.
241. Re Wyld [1932] SASR 298 at 305 per Richards J. See also Re Taylor (1888) 58 LT 538 at 543 per Kay J;
Royal North Shore Hospital of Sydney v Attorney-General (1938) 60 CLR 396 at 428; BC3800018 per Dixon J.
242. Biscoe v Jackson (1887) 35 Ch D 460 at 463–4 per Kay J; Re Willis [1921] 1 Ch 44 at 54 per Younger LJ;
Royal North Shore Hospital of Sydney v Attorney-General (1938) 60 CLR 396 at 420–1; BC3800018 per
Starke J; Attorney-General v Perpetual Trustee Co (Ltd) (1940) 63 CLR 209 at 225; BC4000019 per Dixon
and Evatt JJ; Re McGuire [1941] 1 IR 33 at 37–8 per Black J; Re Flatman [1953] VLR 33 at 36 per Barry J;
Public Trustee v Attorney-General (1997) 42 NSWLR 600 at 603; BC9705058 per Santow J.
243. Re Mulcahy (deceased) [1969] VR 545 at 553 per Pape J.
384
244
to have exhibited a general charitable intention. But if the particular purpose is a means to
give effect to a wider dominant charitable purpose,245 or it ‘transcends the particular mode of
application indicated’,246 the testator is said to have exhibited a general charitable intention.
The foregoing does not exhaust the ways in which the courts have phrased the relevant
inquiry. A common approach is to speak of the breadth of the testator’s purpose: the doctrine
of general charitable intention requires no more than a purpose wider than the execution of a
specific plan involving the particular direction that has failed.247 Along similar lines, a Canadian
judge has remarked that ‘what is required is a conclusion that the specific formulation of the
purpose of the bequest is not exhaustive of the intention of the testator’.248 Though the same
judge opined that it is not necessary to finding a general charitable intention to be able to
precisely frame that intention, the courts have almost without exception sought to define at
least the nature of the testator’s general intention, and rightly so because otherwise it is difficult
to appreciate how a court could find a general intention without in some way attaching it to
an accepted head of charity.
Another approach is to inquire whether modification of an impracticable scheme or project
to enable it to be carried into effect would frustrate the testator’s intention as disclosed by the
will, interpreted in the light of any admissible evidence of surrounding circumstances.249 In
similar vein, Australian authority identifies as a relevant inquiry whether the testator, had he
or she known that the bequest would have been impracticable or impossible at his or her death,
would have abandoned the idea or would have acquiesced in another method of fulfilling the
object.250
15.50 Yet merely stating the above ‘tests’ or inquiries contributes little to an understanding
of the factors that the courts consider indicative of a general charitable intention. These are
discussed below, by reference to the terms and the context of the bequest.
Terms of the actual bequest
15.51 The terms of a bequest may reveal a general charitable intention in the following
principal ways. First, and most basically, where a bequest specifically provides for the destination
of its subject matter upon its lapse or failure, the court will give effect to this.251 In this event,
there is no cy-près issue, as the court is not effecting any variation but merely giving effect to
the actual terms of the will. In any case, a gift over may be evidence undermining a claim to a
general charitable intention in making the original gift.252
15.52 Second, evidence of a general charitable intention may derive from a gift expressed to
the effect that the particular scheme prescribed is only a means of achieving a more general
244. Re McGuire [1941] 1 IR 33 at 37–8 per Black J; Re Lysaght (deceased) [1966] 1 Ch 191 at 202 per Buckley J;
Re Goodson (deceased) [1971] VR 801 at 806 per Adam J; Re Annandale [1986] 1 Qd R 353 at 357 per
Derrington J.
245. Lewis v Benson [1944] VLR 106 at 111 per O’Bryan J.
246. Re Satterthwaite’s Will Trusts [1966] 1 All ER 919 at 925 per Russell LJ.
247. Attorney-General v Perpetual Trustee Co (Ltd) (1940) 63 CLR 209 at 225; BC4000019 per Dixon and
Evatt JJ; Re Tyrie (deceased) [1970] VR 264 at 267 per Gowans J.
248. Weninger Estate v Canadian Diabetes Association (1993) 109 DLR (4th) 232 at 240 per Spence J
(Gen Div(Ont)).
250. Re Lambert (deceased) [1967] SASR 19 at 25 per Bright J; Executor Trustee and Agency Co of South Australia
Ltd v Warbey (1973) 6 SASR 336 at 345 per Bray CJ; Re Tyrie (deceased) [1970] VR 264 at 269 per Gowans J;
Re Annandale [1986] 1 Qd R 353 at 357 per Derrington J.
251. See, for example, Re Peacock’s Charity [1956] Tas SR 142 at 145 per Gibson J (where there was a specific
provision in the will dealing with the possibility that the donee would not accept the bequest on its terms).
252. See, for example, Re Leer Estate (2005) 264 Sask R 131; [2005] SKQB 276 (gift to a hospital that no longer
existed at the date of death, but the will provided that should that hospital not be operating at the date
of death, then the remaining estate should be distributed in a different way). Cf Howard Savings Institution
v Peep (1961) 170 A 2d 39.
385
253
end. This is a rare occurrence. More likely, and no less conclusive in many ways, are prefatory
words explaining the motive for, or object of, the gift.254 For example, in Barby v Perpetual
Trustee Co (Ltd),255 a will contained a general statement of intention, namely the relief of
necessitous returned soldiers,256 prefacing detailed provisions as to the manner in which it was
desired that the intention be carried out. This led the High Court to conclude that the detailed
provisions were merely the mode of carrying out a more general charitable intention.257
15.53 Third, an absence of particularity or detail as to the mode in which an impracticable
charitable purpose is to be effected may indicate a general charitable intention motivating that
purpose.258 For example, in Re H E Blaxland (deceased)259 a bequest to a church institution to
establish ‘a home for sick children’ was held to exhibit a general charitable intention because
it did not specify a location where the home was to be erected, or how or by whom it was to be
operated or financed. Here it appears that a finding of a general charitable intention is not the
product of positive evidence of it, but a lack of comprehensive evidence against it.260 A more
difficult case is where there is evidence of both a general and a particular charitable intention,
thus involving a delicate balancing exercise. The facts of Executor Trustee and Agency Co of
South Australia Ltd v Warbey261 illustrate the difficulty. A bequest to establish a Church of
England Hospital, though lacking in particularity, required that the Synod execute a written
undertaking that the funds would be used for the purpose prescribed. Bray CJ candidly admitted
that this was a case that could have gone both ways and that he had ‘wavered’ about its correct
outcome, but concluded that, as the law favours charity,262 the testatrix had exhibited a general
charitable intention.263
Yet the impracticability of specific and comprehensive directions annexed to a gift does not
always preclude a finding of general charitable intention; these directions may be no more than
a mode of effecting a wider charitable purpose.264 In Re Woodhams (deceased)265 the colleges
that were to act as trustees of the testator’s bequest for music scholarships for orphans did not
accept the bequest because of its restrictive conditions. Vinelott J held that even though the
will prescribed detail relating to the scholarships, it was not essential to the scholarships that
they be so restricted, which could be modified without frustrating the testator’s intention.266
Woodhams is one of several cases evincing a curial willingness to infer a general charitable
intention vis-à-vis an impracticable gift to endow a scholarship.267

254. Wallis v Solicitor-General for New Zealand [1903] AC 173; Royal North Shore Hospital of Sydney v Attorney-
General (1938) 60 CLR 396 at 414; BC3800018 per Latham CJ.
255. (1937) 58 CLR 316; BC3790103.
256. As to the charitable status of bequests of this kind see 8.10, 11.14.
257. Barby v Perpetual Trustee Co (Ltd) (1937) 58 CLR 316 at 322–3 per Latham CJ, at 325–6 per Dixon J;
BC3790103.
258. Re Tyrie (deceased) [1970] VR 264 at 269 per Gowans J.
259. [1964–5] NSWR 124 at 127 per Hardie J.
261. (1973) 6 SASR 336.
262. See 6.1–6.3.
263. Executor Trustee and Agency Co of South Australia Ltd v Warbey (1973) 6 SASR 336 at 345–6.
265. [1981] 1 All ER 202.
266. Re Woodhams (deceased) [1981] 1 All ER 202 at 212.
267. See, for example, Royal North Shore Hospital of Sydney v Attorney-General (1938) 60 CLR 396 at 414–16
per Latham CJ, at 418–19 per Rich J, at 421 per Starke J, at 427–9 per Dixon J; BC3800018; Permanent
Trustee Co of New South Wales Ltd v Presbyterian Church (New South Wales) Property Trust (1946) 64 WN
(NSW) 8 at 9 per Roper J; Re Lambert (deceased) [1967] SASR 19 at 25 per Bright J; Re Estate of Healy
[2014] VSC 257 at [24]–[27] per Daly AsJ. Contra Re Mackenzie (deceased) [1962] 2 All ER 890 at 894 per
Pennycuick J; Re Leitch (deceased) [1965] VR 204 at 206 per Adam J in obiter.
386
Nor does mere identification of a specific charity necessarily oust a general charitable
intention.268 For example, in Re Coulson269 the following factors led McMillan J to find that
a gift to a (now) non-existent institution evinced a general charitable intention to benefit
the kind of work carried on by a successor institution: there was no gift over in the event that
the gift should fail; the entire residue of the estate was given to two charitable organisations;
in another clause of the deceased’s will showed a particular intention; the gift imposed no
limitation on the purpose to which it may be put; and the objects and purposes of intended
donee were general and broad. By way of contrast, her Honour in Melba Support Services
Inc v Bell270 found no general charitable intention in a parallel factual scenario, where: the
bequest made provision for a gift over; the residue was to be divided between the deceased’s
family members; there were no other specific charitable gifts in the will; the bequest gave
directions as to how the money should be spent; and the intended donee’s objects and purposes
were quite specific.
15.54 Fourth, evidence of a general charitable intention may derive from an impracticable
bequest to a specified institution expressed for a general charitable purpose. For example,
in Re Mulcahy (deceased)271 the testatrix made a bequest to ‘the Daughters of Charity of
St Vincent de Paul for their work in connexion with the blind children at St Paul’s School for
the Blind’. The Daughters of Charity no longer carried on this work at the date of the testatrix’s
death. Pape J held that the gift manifested a general charitable intention, and therefore did not
lapse, reasoning that:272
… where you have … the ultimate purpose of the bequest stated with such simplicity and clarity
as is the case in this bequest, and where you find that the legatee named in the gift was at the
time the will was made in fact performing the work connected with that ultimate object but is at
the death of the testatrix no longer so engaged I find it impossible to say that the paramount or
dominant intention of the testatrix was to confer those ultimate benefits only if the Daughters of
Charity were still engaged in providing them.
Similarly, in Weninger Estate v Canadian Diabetes Association273 a bequest to the respondent
association to be used ‘solely for the purpose of providing insulin to the needy’ was upheld, even
though the association was not actually involved in providing insulin to the needy, because
the testator’s general purpose could be described as ‘directed to reducing the cost of care and
treatment for persons with diabetes’.
The expression of a general purpose in making a bequest can outweigh any inference that may
stem from the particularity with which it is expressed. In Re Annandale274 a testatrix bequeathed
moneys to a university for psychological research, conferring on a named professor the power
‘to direct and prescribe the research project upon which such moneys are to be expended’. The
professor renounced this power. Derrington J held that the substance of the testatrix’s intent was
that there should be a contribution to psychological research in general, ‘and the particularity
that is employed is occasioned only by specific provisions directed solely to the efficient
268. Re Lucas [1948] Ch 424 at 428 per Lord Greene MR; Attorney-General v Public Trustee (1987) 8 NSWLR
550 at 555 per Hope JA; Re Coulson [2014] VSC 353; BC201406051 at [74] per McMillan J (citing the
equivalent paragraph in the first edition of this work).
269. [2014] VSC 353; BC201406051 at [75]. See also Re McGregor Estate (2014) 241 ACWS (3d) 252; [2014]
BCSC 896 (where Hogarth J was similarly influenced, in finding a general charitable intention, by the
absence of a gift over and no indication of any intention to benefit any next-of-kin: at [34], [35]).
270. [2014] VSC 425; BC201407400 at [68].
271. [1969] VR 545.
272. Re Mulcahy (deceased) [1969] VR 545 at 553. See also Re Roberts (1981) 130 DLR (3d) 74 at 80 per
McQuaid J (bequest to the ‘Protestant Children’s Home, Mount Herbert, Prince Edward Island, for the
benefit of the Children’ held to exhibit a general charitable intention because ‘the bequest was not really to
the home but rather was for the purpose of the home, which was the care of orphan children’); Re Tufford
(1984) 6 DLR (4th) 534 at 536–7 per Weatherston JA (CA(Ont)).
273. (1993) 109 DLR (4th) 232 at 241 per Spence J (Gen Div(Ont)).
274. [1986] 1 Qd R 353.
387
275
implementation of the purpose’. According to his Honour, the nature of the details spoke of a
‘mere superimposition, upon a general charitable intention, of a known convenient instrument
of efficacy where appropriate institutions for the purpose can be named, and a discretion reposed
in an expert to aid the intent by choosing the most efficient means at the time’.276
15.55 Fifth, if the particular mode of carrying out the bequest is expressed in precatory
terms, it may be easier to infer an intention that it be subordinate and inessential to the main
charitable purpose of the bequest.277 The converse is not necessarily the case; that the mode
in question is expressed in mandatory terms does not preclude a finding of a general charitable
intention, but is a factor to be taken into account.
15.56 Sixth, the character of the body appointed trustee (such as, for example, a church)
of the gift of itself is not conclusive evidence of general charitable intention.278 The nature
of the trustee will play a part (and possibly a decisive part) in determining whether the gift is
for a charitable purpose,279 but this is a different issue to the motivation for making the gift,280
which is the relevant inquiry regarding general charitable intention.
15.57 Seventh, where a bequest is made to an institution that ceased to exist prior to the
testator’s death, the objects of that institution may give insight into the nature of the testator’s
intention. If they are phrased in general or broad terms, specific objects being subservient to
the general charitable object, this may indicate that, in making the bequest, the testator was
motivated by a general charitable intention.281
Context of the bequest
15.58 The association or identification of an impracticable gift with other practicable
charitable gifts may indicate that the donor was motivated by a general charitable intention.282
The existence of a list of bequests headed ‘the following charities’, or the like, may indicate
likewise.283 This inference is particularly strong where the gift is one of residue,284 testamentary
provision has already been made for the next-of-kin, and the practicable gifts exhibit a general
charitable intention. An example is Re Hutchinson’s Will Trusts285 in which the testator made
residuary bequests to five hospitals, one of which closed prior to his death. Upjohn J held that
the fact that the testator had bequeathed the residue of his estate to hospitals dealing with five
branches of sickness in the district revealed a general charitable intention.286
275. Re Annandale [1986] 1 Qd R 353 at 358.

276. Re Annandale [1986] 1 Qd R 353 at 360.
277. Re Goodson (deceased) [1971] VR 801 at 807 per Adam J.
278. Muir v Archdall (1918) 19 SR (NSW) 10 at 14 per Harvey J.
279. See, for example, the gifts for associations case law discussed at 13.21.
280. As to the role of motive in determining charitable status see 2.8–2.11.
281. Re Rowell (deceased) (1982) 31 SASR 361 at 373–4 per Wells J; Public Trustee v Attorney-General (1997)
42 NSWLR 600 at 609–10; BC9705058 per Santow J.
282. Executor Trustee and Agency Co of South Australia Ltd v Warbey (1973) 6 SASR 336 at 342 per Bray CJ;
Re Jacobsen (1977) 80 DLR (3d) 122 at 127 per Murray J (SC(BC)); Re Spence [1979] Ch 483 at 494 per
Megarry VC (describing this as ‘charity by association’); Perpetual Trustee Co Ltd v Minister for Health of the
State of New South Wales (SC(NSW), Cohen J, 13 December 1990, unreported) BC9001630 at 13.
283. McCormack v Stevens [1978] 2 NSWLR 517 at 519 per Kearney J.
284. Re Jacobsen (1977) 80 DLR (3d) 122 at 127 per Murray J (SC(BC)); Re Findlay’s Estate (1995) 5 Tas R 333
at 341–2; BC9506698 per Cox CJ.
285. [1953] 1 Ch 387.
286. Re Hutchinson’s Will Trusts [1953] 1 Ch 387 at 393–4. See also Re Knox [1937] Ch 109 (where nursing
establishments or accommodation were common to all of the named institutions); Re Roberts (deceased)
[1963] 1 All ER 674 at 681 per Wilberforce J; Re Satterthwaite’s Will Trusts [1966] 1 All ER 919 (where the
residue of an estate was left to several organisations all of which were concerned with the care or treatment
of animals); Perpetual Trustee Co Ltd v Minister for Health of the State of New South Wales (SC(NSW),
Cohen J, 13 December 1990, unreported) BC9001630 (where all of the donees, including the one that had
closed prior to the testator’s death, were hospitals in different districts of New South Wales, which indicated
that ‘the testator’s interest was in making gifts to institutions which were concerned generally with the
health of the community’: at 14); McLean v Attorney-General [2002] NSWSC 377; BC200202290 at [62]
per Campbell J.
388
15.59 While the presence of another or other charitable bequests may be some indication of
general charitable intent, it is unlikely to be decisive.287 In each case, the court must consider
the terms and nature of the impracticable gift. For instance, in Re Tyrie (deceased) (No 1)288
Newton J held that, even though the will made several gifts to institutions that educated and
supported underprivileged children, a gift to a specified training farm that no longer existed
lapsed for lack of a general charitable intention because its terms indicated that it was an
indispensable element of the testatrix’s intention that her purpose be carried out through the
instrumentality of that training farm.
15.60 No general charitable intention can be inferred from a gift for a non-charitable
purpose.289 Merely because an impracticable gift is located together with practicable charitable
gifts does not confer a charitable status on the impracticable gift that it would otherwise lack.
This was made clear by Buckley J in Re Jenkins’s Will Trusts who said:290
… the principle of noscitur a sociis does not … entitle one to overlook self-evident facts …
Finding one gift for a non-charitable purpose among a number of gifts for charitable purposes the
court cannot infer that the testator or testatrix meant the non-charitable gift to take effect as a
charitable gift when in the terms it is not charitable, even though the non-charitable gift may
have a close relation to the purposes for which the charitable gifts are made.
Jenkins involved a bequest to the anti-vivisection society, a non-charitable organisation,291
coupled with bequests to charitable associations directed at preventing cruelty to animals.
Buckley J rejected the argument that the bequest to the anti-vivisection society should be
applied cy-près because of the charitable flavour of the other bequests, reasoning that such an
argument would render charitable that which was not a charitable object, which was not the
role of the cy-près doctrine.
15.61 The foregoing represents an application of the more general notion that, in determining
the issue of general charitable intention, the court must place the impracticable gift in the context
of the will as a whole.292 If the wording of the bequest, or its association (if any) with other charitable
bequests, proves equivocal, there may be other clause(s) in the will that shed light on the donor’s
intention. For example, in Re Quaid293 a bequest was made to a religious organisation to found
and conduct a Foundling Hospital to operate according to prescribed conditions, namely that
the saving of infant life was to be the first consideration, that there should no discrimination on
the basis of parentage or religion, and that a crib be placed in the reception hall each night for the
reception of infants. The donee disclaimed the bequest. These conditions were not indispensable
to the primary object of the bequest (which was the hospital), according to Lucas J, in view of a
clause appearing later in the will that envisaged the preparation of a trust deed for regulation of
the hospital, which required the insertion of such conditions or provisions as may be necessary ‘in
order to give full effect to my intention as above expressed or as nearly thereto as possible’.
Particular charitable intention in cases of initial impossibility

15.62 Gifts in respect of which the testator has been found to lack a general charitable
intention can be grouped into three non-mutually exclusive main categories:
● where the gift of specific property is directed to be used in a specific way;
● where attached to the gift are very detailed and precise instructions as to its application; and
● where the gift is to a specific institution that no longer exists.
287. Re Annandale [1986] 1 Qd R 353 at 358 per Derrington J.

288. [1972] VR 168 at 184–5 per Newton J.
289. Cf Re Lawton [1940] 1 Ch 984 at 986 per Simonds J.
290. [1966] 1 Ch 249 at 256.
291. As to why organisations directed to the prohibition of animal vivisection have traditionally been treated as
charitable see 12.19.
292. Re Satterthwaite’s Will Trusts [1966] 1 All ER 919 at 923 per Harman LJ.
293. [1972] QWN 22.
389
Each is discussed below. Yet that a gift comes within one or more of these categories is not
conclusive proof against a general charitable intention. In each case, its terms must be construed
as a whole to determine whether it can be said with certainty that the testator exhibited only
a particular charitable intention in making the gift.
Gift of specific property to be used in a specific charitable way
15.63 If the terms of a charitable gift that proves impracticable indicate that the donor means
it to take effect if, and only if, it can be carried into effect in a specified way, the donor cannot
be said to have displayed a general charitable intention. For example, in Re Tyrie (deceased)294
the testatrix made a bequest to the Presbyterian Church for the purpose of erecting a church
at a locality in memory of deceased members of her family. Its erection was impracticable,
both for lack of need and for lack of funds. Gowans J held that, because of the specificity in
which the gift was expressed, it was essential to the testatrix that it be applied in erecting a
new church, and at the prescribed locality, because by reason of these prescriptions it would
be a memorial to her family. His Honour found ‘no dominant concern with the provision of
religious amenities for the benefit of the local Presbyterian community to the subordination of
the purpose of erecting a church of that kind and at that place’.295
15.64 The case reports contain several examples of gifts of the donor’s home for impracticable
charitable purposes that have lapsed for a lack of general charitable intention. One is
Re Gwilym (deceased),296 where the testatrix bequeathed her house to trustees to hold as a
museum and art gallery.297 The house was unsuitable for this purpose. Smith J discerned no
general charitable intention due to a combination of three factors: the testatrix intended to
‘establish a permanent memorial to herself’;298 the will contained no express power to maintain
or provide for a caretaker for any other premises in which the museum or art gallery may be
294. [1970] VR 264.

295. Re Tyrie (deceased) [1970] VR 264 at 267–8. See also Gilmore v Uniting Church in Australia Property Trust
(South Australia) (1984) 36 SASR 475 at 478 per Millhouse J (where the testatrix bequeathed moneys to
be used towards the cost of erecting a new church on a specific site with provisos that the church be named
in memory of her husband and have a memorial window to herself; the purpose, location, naming and
memorial were held to ‘all show a very specific intention’).
296. [1952] VLR 282. See also Re Packe [1918] 1 Ch 437 at 441–2 per Neville J; Foundling Hospital and Infants’
Home v Trustees Executors & Agency Co Ltd (1945) 19 ALJ 383 (where the fact that the gift of income was
given in perpetuity and that a power of sale was contained in the will was held not to be sufficient evidence
of a general charitable intention); Re Barry (deceased) [1971] VR 395 at 399–400 per Gowans J; Re Goodson
(deceased) [1971] VR 801 at 806–7 per Adam J (which involved the bequest of the testatrix’s house to
a church to be used ‘as a home for refined elderly ladies’, which was completely unsuitable for this purpose;
Adam J held that the use of the testatrix’s home was an essential and indispensable condition of the gift
because, inter alia, of the terms of the disposition itself (‘use’ of the home for a specified purpose), that it
was her home meaning that she had strong sentimental attachments to it, her express wish to have the
property named after her family, and the expression of her desire that the house not be sold by the church);
Fort Sackville Foundation v Darby Estate (2010) 287 NSR (2d) 158; [2010] NSSC 27 (where the testator’s
gift of his residence and its contents to an institution that had ceased to exist, and lacked a successor, lapsed
in the absence of a general charitable intention; according to Moir J, the gift had ‘too narrow a focus to be
taken for a general charitable intention’ given the testator’s ‘express desire to preserve his home’, the entire
gift being ‘conditional on the home being maintained as a heritage property’: at [25], [26]).
297. Museums and art galleries are, as a general rule, charitable institutions, at general law coming under the
advancement of education head of charity (or possibly the fourth head): see 9.6.
298. That a donor is motivated partly by a desire to perpetuate his or her name is not, taken by itself, necessarily
inconsistent with a general charitable intention: see, for example, Rogers v Attorney General (1964)
196 NE 2d 855 at 860 (‘Her dual desire to have the property thus used [for charitable purposes] and to have
the family name perpetuated does not foreclose the court from finding a general charitable intent’); Hardy
v Davis (1958) NE 2d 805 (where the donor included provisions in her will for a named orphanage, and its
operation became impracticable, the court remarked (at 813) that ‘[i]t is difficult to assume that [the donor]
had no interest in orphan children, apart from [operation of the specific named facility]’). Cf Nelson v Kring
(1979) P 2d 438 (where the donor bequeathed funds to support a hospital that he had founded and named
after himself while living; when the hospital failed several decades later, the court declined a cy-près
application to more general health-related purposes because it found that the donor ‘intended to support
the particular hospital which bore his name in his small town and had no broader charitable intent’: at 444).
390
established; and the will directed the trustees to hold the house for 15 years and to transfer
‘the said house’ to new trustees thereafter, subject to the new trustees giving an undertaking to
retain the house as a museum and art gallery.299 Use of the house was therefore an indispensable
condition of gift.
The same approach applies to testamentary gifts of land that prove impracticable. In Fellows
v Sarina300 a bequest of land as a wildlife sanctuary failed for impracticability due to a lack of
provision for the cost of establishing, maintaining and monitoring it. Simos J found no general
charitable intention because the testator, in directing that the property was ‘not to be sold’ but
was ‘to forever remain’ as a wildlife sanctuary, and that it could be used by ‘relations and their
friends to picnic or camp thereon’, ‘made it plain that … the use of the specified land was an
integral and essential part of his gift’.301
15.65 The foregoing does not mean that the devotion of a particular piece of land to
a particular purpose found to be impracticable is always inconsistent with a general charitable
intention. Other aspects of the gift may reveal that the donor was motivated by a general
charitable intention. The leading Australian case, Attorney-General v Perpetual Trustee Co
(Ltd),302 is a prime example. The testatrix bequeathed her farming property (‘Milly Milly’) to
be used as a ‘training farm for orphan lads’. At the date of her death, the use of the farm for this
purpose was impracticable because the homestead was too small, the plant too old-fashioned
and the income insufficient to make the farm a viable concern. The High Court held that the
use of the farm was not essential to the testatrix’s main purpose, but subsidiary to it, Dixon and
Evatt JJ reasoning as follows:303
[T]here is nothing in the language of the will or in the surrounding circumstances to suggest that
the testatrix chose Milly Milly for any better reason than that, of the assets of which she was
disposing by will, Milly Milly provided the most suitable means of giving effect to her intentions.
The failure of her issue and the presence in her will of other charitable bequests form a sufficient
foundation for the inference that her testamentary dispositions were based on a desire to devote
much of her property to the general benefit of the community and to negative any idea that she
may have been actuated less by a wish to advance the useful end to which she devoted the property,
than by some desire to conserve Milly Milly intact, a desire, to suppose a possible example, that it
might continue as an enduring memorial to herself or her husband.
Detail and particularity

15.66 The detail or particularity attached to the operation of the gift may indicate this to
be essential to what the donor wished to achieve, and thus inconsistent with the presence of
a general charitable intention. In Re Good’s Will Trusts,304 for example, a bequest to establish
a rest-home for the aged, which failed from the outset for insufficient funds, lacked a general
charitable intention because, by reason of the testator’s detailed plans in relation to the home
(including rules of admission, management powers and for its layout), the particular object
was too precisely defined to import any such construction. And in Re Wilson,305 involving an
impracticable gift to establish and maintain a school to instruct pupils in Latin and Greek, and
‘all the elementary parts of mathematics, both pure and mixed’, which prescribed particular
299. Re Gwilym (deceased) [1952] VLR 282 at 285.

300. (SC(NSW), Simos J, 9 May 1996, unreported) BC9601865.
301. Fellows v Sarina (SC(NSW), Simos J, 9 May 1996, unreported) BC9601865 at 22.
302. (1940) 63 CLR 209; BC4000019.
303. Attorney-General v Perpetual Trustee Co (Ltd) (1940) 63 CLR 209 at 229; BC4000019. See also at 230–1
per McTiernan J; Roman Catholic Trusts Corporation for the Diocese of Melbourne v Attorney-General [2000]
VSC 360; BC200005645 (a factually similar case where Byrne J applied Attorney-General v Perpetual
Trustee Co). At the time, some were of the view that Attorney-General v Perpetual Trustee Co had virtually
abolished the distinction between a general and a particular charitable intention, at least until the later
case of Foundling Hospital and Infants Home v Trustees Executors and Agency Co Ltd (1945) 19 ALJ 383:
C McLelland, ‘Fifty Years of Equity in New South Wales — A Short Survey’ (1951) 25 ALJ 344 at 348.
304. [1950] 2 All ER 653 at 656 per Wynn-Parry J.
305. [1913] 1 Ch 314 at 323–4.
391
conditions as to the running of the school and its location, Parker J held that this ‘great
particularity’ meant that the gift could not be construed as for the general purpose of promoting
higher education, but depended on the fulfilment of those conditions.
15.67 Importantly, detail and particularity is not in itself conclusive against a general
charitable intention, in that, on the proper construction of the gift, a court may find that not
all (or any) of the details or particulars are essential to the testator’s intention.306
Bequest to specific institution that no longer exists
15.68 The issue plaguing gifts to specific institutions that no longer exist is whether the
court should presume that, by prescribing a particular institution as the beneficiary, the donor
cannot be said to be motivated by a general charitable intention. There is some authority to
this effect, a leading statement being that of Farwell J in Re Harwood:307
[W]here the testator selects as the object of his bounty a particular charity and shows in the will
itself some care to identify the particular society which he desires to benefit, the difficulty of
finding any general charitable intent in such a case if the named society once existed, but ceased
to exist before the death of the testator, is very great.
This principle has been applied in later cases,308 and indeed seems to have predated Harwood
in Australian law.309 In 1972 a Victorian judge went so far as to remark that he had found ‘no
reported case where [the cy-près principle] has been applied in the case of a gift to a named
charitable institution simpliciter … where the gift was expressly directed to be applied by the
named institution for a special purpose’.310 Yet in each of the authorities in which the Harwood
approach has been applied, an almost invariable corollary of its application is a lack of factual
analysis to justify the conclusion that the principle dictates.311
15.69 It is not surprising, therefore, that some judges have questioned whether Farwell J’s
statement is phrased in terms too black and white. There are judicial statements emphasising
that Harwood ought not to be seen as an invariable rule,312 one judge saying that he had
always found the decision in Harwood ‘rather remarkable’.313 A blanket approach such as that
propounded by Farwell J is, moreover, prima facie inconsistent with the modern case law that
focuses on the purpose of the gift by reference not only to its construction but to extrinsic
evidence of the donor’s motivation.314 In Attorney-General v Public Trustee315 Hope JA opined
306. See 15.53.

307. [1936] 1 Ch 285 at 287. There is also earlier English authority capable of being so construed: see, for
example, Re Rymer [1895] 1 Ch 19 at 34 per Lord Herschell LC, at 35 per Lindley LJ.
308. Re Cripps (deceased) [1941] Tas SR 19 at 24–5 per Morris CJ; Re Jung (1979) 99 DLR (3d) 65 at 70, 72
per Andrews J (SC(BC)); Re Stemson’s Will Trusts [1970] 1 Ch 16 at 21 per Plowman J; Re Spence [1979]
Ch 483 at 493–5 per Megarry VC; New Zealand Guardian Trust Company Ltd v Presbyterian Support [2015]
NZAR 922; [2015] NZHC 468; BC201560675 at [42]–[44] per Gendall J.
309. See Re Mills [1933] VLR 158 at 164 per Mann ACJ.
311. See, for example, Re Smith (deceased) [1954] SASR 151 at 159 per Ligertwood J; Re Quesnel (deceased)
[1959] SASR 106 at 110 per Napier CJ; Re Slatter’s Will Trusts [1964] 1 Ch 512 at 526–7 per Plowman J;
Re Tyrie (deceased) (No 1) [1972] VR 168 at 184–5 per Newton J; Alacoque v Roache [1998] 2 NZLR 250 at
255 per Somers J.
312. Re Roberts (deceased) [1963] 1 All ER 674 at 681 per Wilberforce J; Re Finger’s Will Trusts [1972] 1 Ch 286
at 299 per Goff J.
313. Re Finger’s Will Trusts [1972] 1 Ch 286 at 299 per Goff J.
314. See, for example, the scenarios presented at 15.29, 15.30.
315. (1987) 8 NSWLR 550 at 553–4. See also Re Goldschmidt (deceased) [1957] 1 All ER 513 at 515 per Harman J
(who described the distinction between the two types of cases as a ‘distinction without a difference’);
Perpetual Trustee Co Ltd v Minister for Health of the State of New South Wales (SC(NSW), Cohen J,
13 December 1990, unreported) BC9001630 at 11 (‘It is difficult to find any logic in this distinction’);
Attorney-General v Barr (CA(NSW), Kirby P, Samuels and Handley JJA, 11 October 1991, unreported)
BC9101507 at 6 per Kirby P (‘there is no rule that a gift to a named charity, which existed at the date of the
will but has ceased to exist before death, makes it more difficult to conclude that the testator had a general
charitable intention than where the named charity never existed at all’).
392
that the view that it is more difficult to find a general charitable intention in the case of a gift
to a charity that has ceased to exist, as opposed to a charity that never existed at all,316 had
no basis in principle, logic or justice, and should be rejected as a rule of general application.
Indeed, the lack of logic is illustrated in the outcome in Re Harwood itself. There the testatrix
named as beneficiaries in her will three organisations, each of which included in its description
the words ‘Peace Society’. One of them was found to have existed but had ceased to exist
before the death of the testatrix, whereas the other two could not be clearly identified as
relating to any specific institution. No general charitable intention was found regarding the
first organisation because the testatrix had gone out of her way to identify the object of her
bounty but cy-près schemes were ordered in relation to the other two gifts on the ground that
they revealed a general charitable intention.
Of course, in an appropriate case, and following a proper analysis of the evidence, a court may
be justified in concluding that a gift to an institution that no longer exists must lapse. Re Cripps
(deceased)317 provides an instructive example, even though the relevant part of Morris CJ’s
judgment was, in this context, obiter.318 It involved a bequest to the ‘Prohibition League of
Tasmania’, which had ceased to exist before the death of testator. Two factors supported the
conclusion that the testator had exhibited no general charitable intention. First, Morris CJ
noted that other societies directed towards similar ends were not the beneficiaries of the
testator’s bounty, notwithstanding the testator’s interest in the cause of temperance. Second,
the evidence revealed that the testator chose to benefit this particular League because of his
association with it. After this analysis, which involved far more than the application of a simple
‘rule of thumb’, Morris CJ concluded that the testator had a specific intention to benefit only
the institution in question.319
An ostensibly clearer case is Kings v Bultitude,320 involving a gift of residuary estate to
a church that had no ultimate existence beyond the testatrix, and came to an end with her
death, with no avenues for succession. As the will contained no other charitable gift, and the
church was constituted in accordance with the personal idiosyncratic beliefs of its founder,
and continued by the deceased in accordance with those idiosyncrasies, Proudman J found no
general charitable intention, even though the gift was directed to religion.321
Determining What is Cy-Près

15.70 At general law, a cy-près application is premised on, inter alia, the application of a
gift or donation for a charitable object being otherwise frustrated and, in several instances,
the donor evincing a general charitable intention. If, on the other hand, the charity can be
administered according to the directions of the donor, it must be so administered;322 the court
has no jurisdiction to apply property cy-près ‘so long as any lawful charitable object of the
316. As to which see 15.26.

317. [1941] Tas SR 19.
318. This was so because the Prohibition League of Tasmania was declared to be non-charitable by reason of its
political objects: see 12.33.
319. Re Cripps (deceased) [1941] Tas SR 19 at 24–5.
320. [2010] WTLR 1571; [2010] EWHC 1795 (Ch).
321. Kings v Bultitude [2010] WTLR 1571; [2010] EWHC 1795 (Ch) at [53]. But see J Picton, ‘Kings v Bultitude
— A Gift Lost to Charity’ [2011] Conv 69 (who criticises the decision for being out of step with the wider
principle of generosity towards charitable legacies).
322. Re Weir Hospital [1910] 2 Ch 124 at 141 per Kennedy LJ.
393
testator’s bounty is available, however inexpedient such object may appear to the Court as
compared with other objects’.323
15.71 Inherent in a cy-près scheme is some degree of departure from the original trust; this,
after all, stems from the threshold of impossibility or impracticality in relation to the original
trust.324 At the same time, as ‘[t]he fundamental responsibility of a court administering charitable
trusts is to give effect to the trusts as laid down by the testator or settlor’,325 in applying the
cy-près doctrine the court must pay paramount regard to the donor’s intention. So the court
must, it has been said, select an alternative that ‘most nearly approximates to the intention’
of the donor326 or, expressed another way, is ‘as close as possible to the particular manner
which the deceased chose for the achieving of that general charitable intention’.327 This does
not absolve the court from considering the comparative advantages of various charitable objects
to which the fund could be applied,328 as more than one object may come within the ambit of
the donor’s intentions.329 To this end, a cy-près scheme should, it has been said, combine virtues
of proximity, usefulness and practicability.330 Yet in this assessment the donor’s intention must
override, and the court must give effect to that intention even if the outcome may be less
beneficial to the community at large than another scheme.331 In the words of Kennedy LJ:332
[The court is not] entitled to substitute a different scheme for the scheme which the donor has
prescribed in the instrument which creates the charity, merely because a coldly wise intelligence,
impervious to the special predilections which inspired his liberality, and untrammelled by his
directions, would have dictated a different use of his money.
In Re Prison Charities,333 for instance, where charitable trusts established for the benefit of
poor prisoners in the City of London failed because of the abolition of imprisonment for debt,
Bacon V-C rejected a scheme proposed whereby the trust funds should be treated as one charity
and applied to the building, establishment and maintenance of a school for children of persons
convicted of crime and undergoing sentence. The latter was not, according to his Lordship,
323. Re Weir Hospital [1910] 2 Ch 124 at 135 per Farwell LJ. See also Philpott v St George’s Hospital (1859)
27 Beav 107 at 111; 54 ER 42 at 44 per Lord Romilly; McLean v Attorney-General [2003] NSWSC 853;
BC200305560 at [4] per Campbell J (‘the court does not have a free hand to re-cast the provisions of
the will in whatever way seems to it to be desirable’). Cf the position under statute in each State: see
16.1–16.14.
324. St John of God Health & Elder Care Services Trust Board v Little Sisters of the Poor (NZ) Trust Board (2008)
28 FRNZ 219; [2008] NZHC 1273 at [55] per Asher J.
325. Phillips v Roberts [1975] 2 NSWLR 207 at 211 per Hutley JA.
326. Phillips v Roberts [1975] 2 NSWLR 207 at 214 per Samuels JA. See also Re The Door of Hope (1905)
26 NZLR 96 at 100 per Edwards J; Canada Trust Co v Shaver (2007) 67 BCLR (4th) 166; [2007] BCSC
54 at [94] per Holmes J (the court may design the ‘next best thing’ to carry out the settlor’s intention where
the indicated method fails). This explains why courts in the United States sometimes refer to the cy-près
doctrine as the ‘doctrine of approximation’.
327. Phillips v Roberts [1975] 2 NSWLR 207 at 217 per Mahoney JA; McCormack v Stevens [1978] 2 NSWLR
517 at 519 per Kearney J; Trust Company (Australia) Ltd v Attorney-General (No 2) [2012] NSWSC 1505;
BC201210070 at [5] per White J. Cf the phrases ‘sufficiently close’ or ‘adequately close’ to the testator’s
specific directions (Weninger Estate v Canadian Diabetes Association (1993) 109 DLR (4th) 232 at 241,
242 per Spence J (Gen Div(Ont)) which appear to set a less stringent standard for cy-près applications.
See also Ontario Law Reform Commission, Report on the Law of Charities, 1996, p 406 (recommending
the application be ‘as close as practicable or reasonable’ to the original purpose, reasoning that the ‘the
law should signal to courts that the objective is to create a viable project that implements the disponer’s
charitable intention effectively’).
328. Re Weir Hospital [1910] 2 Ch 124 at 132 per Cozens-Hardy MR.
329. Phillips v Roberts [1975] 2 NSWLR 207 at 211 per Hutley JA.
330. Re Fitzpatrick (1984) 6 DLR (4th) 644 at 653 per Simonsen J (QB(Man)).
331. Phillips v Roberts [1975] 2 NSWLR 207 at 213 per Hutley JA. See also Howard Savings Institution v Peep
(1961) 170 A 2d 39 at 43 (‘cy-près is an intent-enforcing doctrine’); Simmons v Parsons College (1977)
256 NW 2d 225 at 227 (‘courts may not ignore the testator’s intent in order to give effect to doubtful trust
provisions by invoking the doctrine of cy-près. Cy-près is simply a liberal rule of construction used to carry
out, not defeat, the testator’s intent’).
332. Re Weir Hospital [1910] 2 Ch 124 at 140–1.
333. (1873) LR 16 Eq 129.
394
sufficiently aligned with the intention of the original trust, being for the relief of poverty
among adults rather than relieving children or assisting in their education.334 Similarly, and
much more recently, in Trustees of the Christian Brothers in Western Australia (Inc) v Attorney-
General335 Templeman J refused to sanction a scheme to educate boys at a college because, via
the gift that proved to be impracticable, the testatrix had intended to benefit boys who had
completed their education at the college and needed support to facilitate their advancement
into the next stage of their lives. The proposed scheme, according to his Honour, did not have
‘a close resemblance to the old trust’, and nor did it ‘discharge the duty to those proposed to be
benefited by the trust’.336
15.72 It goes without saying that the vesting of a gift beneficially in an association with
both charitable and non-charitable objects, or for purposes that are not exclusively charitable,
cannot be an application of the gift cy-près for charitable purposes.337 Also, a court will be
reticent, other than in an exceptional case, to order a cy-près scheme that might divert property
devoted to one head of charity to another.
15.73 The breadth of the characterisation of the donor’s charitable intention is what
determines the potential scope of a cy-près scheme; the broader that intention, the broader the
scope of potential objects that can validly come within the scheme. For example, in Re Welsh
Hospital (Netley) Fund,338 upon the closure of a hospital for sick and wounded soldiers that
had been funded through public subscriptions, the issue arose as to application of the surplus
remaining. P O Lawrence J held that, as in making donations the subscribers exhibited a
general charitable intention to benefit the sick and wounded,339 the surplus could be applied
cy-près for the training of persons whose duty it was to attend to the sick and wounded, namely
physicians and surgeons.340
15.74 In settling a cy-près scheme, it is legitimate for the court to reflect modern community
attitudes. It may, for instance, expand the application of a charitable fund or property to avoid
what, in other contexts, could amount to illegitimate discrimination. For example, in Roman
Catholic Trusts Corporation for the Diocese of Melbourne v Attorney-General,341 involving a trust
for training of orphan boys found to be impracticable, Byrne J settled a scheme that also
encompassed girls, reasoning that ‘the settlor’s intention should reflect moral attitudes which
are not repugnant in the present day’.
334. Re Prison Charities (1873) LR 16 Eq 129 at 149.

335. [2006] WASC 191; BC200606715.
336. Trustees of the Christian Brothers in Western Australia (Inc) v Attorney-General [2006] WASC 191;
BC200606715 at [24]. See also Re Estate of Healy [2014] VSC 257 at [53]–[63] per Daly AsJ.
337. Phillips v Roberts [1975] 2 NSWLR 207 at 226 per Mahoney JA.
338. [1921] 1 Ch 655.
339. This finding precluded the return of the subscribers’ contributions pursuant to a resulting trust: see 15.34.
340. Re Welsh Hospital (Netley) Fund [1921] 1 Ch 655 at 662–3.
341. [2000] VSC 360; BC200005645 at [10].
395

Chapter 15 Cy-Pr S Variation at General Law

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Chapter 15 Cy-Pr S Variation at General Law

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CHAPTER 15

Cy-Près Variation at General Law

Relationship Between General Law and Statutory

Relationship Between General Law and Statutory

Initial Impracticability or Impossibility

34. Re Tyrie (deceased) (No 1) [1972] VR 168 at 177–8 per Newton J.

Accretion to charitable trusts

Application cy-près in case of initial impossibility and impracticability

50. [1912] 2 Ch 488.

Gift for a charitable purpose rather than to a charitable institution

Subsequent (‘Supervening’) Impossibility and Impracticability

61. [2009] 2 Qd R 327; [2009] QSC 174; BC200905773.

Date at Which Impossibility or Impracticability to be Assessed

77. As to the meaning of ‘general charitable intention’ see 15.44–15.61.

88. Re White’s Will Trusts [1955] Ch 188 at 193 per Upjohn J.

Gifts for buildings that are not required

132. See 15.68, 15.69.

Misdescription and the problem of multiple claimants

139. See 10.10.

150. Re Wedgwood [1914] 2 Ch 245 at 249–50 per Joyce J.

‘Out and out’ gift or return to donors?

171. Beggs v Kirkpatrick [1961] VR 764 at 770 per Adam J.

181. Beggs v Kirkpatrick [1961] VR 764 at 771 per Adam J.

Application of ‘out and out’ gifts

187. Re University of London Medical Sciences Institute Fund [1909] 2 Ch 1 at 7, 8.

Excess in Charitable Bequests

Distinguishing General From Specific Charitable Intention

The concept of ‘general charitable intention’

214. See 15.4.

Definition of ‘general charitable intention’

253. Re Woodhams [1981] 1 All ER 202 at 210 per Vinelott J.

275. Re Annandale [1986] 1 Qd R 353 at 358.

Particular charitable intention in cases of initial impossibility

287. Re Annandale [1986] 1 Qd R 353 at 358 per Derrington J.

294. [1970] VR 264.

Detail and particularity

299. Re Gwilym (deceased) [1952] VLR 282 at 285.

306. See 15.53.

Determining What is Cy-Près

316. As to which see 15.26.

334. Re Prison Charities (1873) LR 16 Eq 129 at 149.

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