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

Charities - Charitable gifts and trusts - When applied cy pres - Where general charitable intention - Incorrect description of charity - Gifts to non-existent institutions.

Gray v Australian Cancer Foundation for Medical Research; Estate Harold Boardman [1999] NSWSC 492; Phillips v Roberts (1975) 2 NSWLR 207, applied.

Respondent Australian Cancer Society: A J Abbott

Respondent Australian Cancer Research Foundation: T J Williams

Respondent David Collins Leukaemia Foundation of Tasmania: R J Blisserday

Respondent Attorney-General of Tasmania: P Turner

Respondent Australian Cancer Society: Simmons Wolfhagen

Respondent Australian Cancer Research Foundation: Gunson Williams

Respondent David Collins Leukaemia Foundation of Tasmania: Avery Partners

Respondent Attorney-General of Tasmania: Department of Public Prosecutions

Judgment Number: [2001] TASSC 16

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

1 By her last will dated 24 June 1997, Dora Wilson of Devonport in Tasmania, after making a number of special bequests, concluded with the following residuary bequest:

"n) as to the residue of my estate to the Head Office in Australia of the AUSTRALIAN ANTI CANCER SOCIETY/RESEARCH for their research activities and I DECLARE that the official receipt from the Secretary/Treasurer of such organisation shall be deemed a sufficient discharge to my Trustee."

2 I shall refer to Mrs Wilson as the testator, not the testatrix. I share the view of Bryan A Garner, A Dictionary of Modern Legal Usage, Oxford University Press, New York, 1987 at 502, that terms such as "testator", "prosecutor" and "litigator" should be treated as common sex terms.

3 The testator died on 14 November 1997. Probate of her will was granted to the applicant which has applied for the determination of the following questions:

"1 Whether upon the true construction of the will of Dora Jocelyn Wilson dated 24th June 1997, the bequest of the residue of the estate to the head office in Australia of the Australian Anti-Cancer Society/Research is a bequest to:

2 If the answer to each part of question 1 is no, whether the bequest showed a general charitable intent.

3 If the answer to question 2 is 'yes', whether it is applicable cy-pres and if so, what are the appropriate terms of the scheme.

4 If the answer to question 2 is 'no', whether the bequest is indisposed of by the will and devolves on an intestacy."

4 No entity bears the name specified in the residuary bequest, the Australian Anti Cancer Society/Research. Whilst the organisation that the testator had in mind may have been the Australian Cancer Society ("the Society") or the Australian Cancer Research Foundation ("the Foundation"), I am unable to construe the bequest as being intended to benefit either of these organisations or any other entity. Counsel for the parties represented before me, which included the Society and the Foundation, have not submitted otherwise. In consequence, the bequest will fail unless it can be categorised as having been made for a charitable purpose, that is, for a purpose both beneficial to the community and within the spirit and intent of the preamble to Statute 43 Eliz 1, c4; The Royal National Agricultural and Industrial Association v Chester (1974) 48 ALJR 304 at 305. All counsel have submitted that the bequest demonstrates a general charitable intent. I agree and will not deal further with this issue save for citing the following apposite authorities: Re E M Murray (deceased); Permanent Trustee Co of NSW v Salwey [1964 - 1965] NSWR 121, Re Daniels, deceased [1970] VicRp 10; [1970] VR 72, Re Simpson deceased [1961] QWN 50 and Murdoch v Attorney-General (Tas) and Pearce (1992) 1 Tas R 117.

5 As observed by Young J in Gray v Australian Cancer Foundation for Medical Research; Estate Harold Boardman [1999] NSWSC 492 at par22:

"When a will shows a general charitable intent but for reason of uncertainty or otherwise the testator's exact purpose cannot be carried out, the Court of Equity orders that the trust be executed cy pres, ie, to use the words of Isaacs J in Attorney General for the State of New South Wales v Adams [1908] HCA 51; (1908) 7 CLR 100, 125, the Court makes an order to '... carry out the general paramount intention in some way as nearly as possible the same as that which the testator has particularly indicated without which his intention itself cannot be effectuated'. In other words, the Court looks to see from the will what was the testator's intention and what were the means which the testator indicated should be used to effectuate the intention (see Phillips v Roberts [1975] 2 NSWLR 207 at 214 and 217) and then requires that the fund be used in that way. In that manner the testator's intention to benefit the charity can be carried out in as nearly as possible a way to that which he or she would have intended. In working out the cy pres scheme the Court has to move away from construing what the testator said in it and work out how best to effectuate his general charitable intention."

6 In Phillips v Roberts (1975) 2 NSWLR 207, at 212, Hutley JA, referred to the need to approve a cy pres scheme "within the ambit of the intentions of the testatrix as declared" and, at 213, his Honour said with respect to competing objects "it is not wrong ... to give priority ... to that which is closest to the intention of the testatrix". Samuels JA at 214 approved the scheme which "upon the terms of the will alone ... more nearly approximates to the intention of the testatrix ...". Mahoney JA at 224 said what the Court does is to select the manner of application of the gift which is as near as possible to the manner which the deceased selected. In his view, prima facie, it is to the manner chosen, rather than to the intention of the testator, to which attention is directed. In my view, that distinction is of little significance in this case as the selection of a manner of application of the bequest which is as near as possible to the manner in which the testator selected will inevitably reflect, as near as possible, the intention of the deceased.

7 As to the testator's intention and the means she indicated should be used to effect her intention, I conclude:

* She intended to benefit an organisation involved in research into cancer. This is apparent from her use of the words "Cancer" and "Research" in the name she gave to the organisation she intended to benefit and her direction that the bequest be used for that orgnisation's "research activities".

* The involvement of the organisation she intended to benefit in cancer research was not confined to any particular type of cancer. This is manifest from her use of the word "Cancer" in the name given to the organisation she intended to benefit, as distinct from a word specifying a particular type of cancer.

* She intended to benefit a national organisation rather than a State or local body. This emerges from her reference to "the Head Office in Australia" of the organisation she named and the use of the word "Australia" in the name she gave to that organisation.

8 There are many deserving organisations in Australia involved with cancer research. In order to identify those organisations that wished to put themselves forward as potential beneficiaries of any cy pres scheme approved by the Court:

* notice of these proceedings was served on the Society, the Foundation, the David Collins Leukaemia Foundation of Tasmania Inc, the Cancer Council of Tasmania Inc, the Menzies Centre for Population Health Research, the Prostate Cancer Foundation of Australia Ltd and the Leukaemia Foundation of Australia Ltd; and

* other organisations involved with cancer research that wished to participate in the proceedings were given notice of their entitlement to be heard by means of advertisements for potential claimants published in the Australian newspaper and the journal of the Australian Medical Association.

9 Appearances were filed by the Society, the Foundation, the David Collins Leukaemia Foundation of Tasmania Inc and the Cancer Council of Tasmania. On the hearing of this matter, claims for inclusion in any cy pres scheme the Court approved were pressed by the first three of these organisations, but not the Cancer Council of Tasmania.

10 The primary objective of the David Collins Leukaemia Foundation of Tasmania Inc, is to raise funds to support research into leukaemia at a public hospital, ordinarily the Royal Hobart Hospital, in association with the Clinical School of the University of Tasmania. It also maintains a unit to accommodate patients undertaking treatments for cancer at the Royal Hobart Hospital and the families of those patients. Whilst I am in no doubt that it is a most worthy organisation, I am not satisfied that it should be included as a beneficiary of the necessary cy pres scheme as it does not have two of the characteristics of the organisation which I discern that the testator intended to benefit. Firstly, its focus on research is confined to one form of cancer, leukaemia, and, secondly, it is not a national organisation. It has declined to join the Australian Leukaemia Foundation and recently changed its name by adding the words "of Tasmania" in order to give emphasis to the fact that any money donated to it stayed in Tasmania.

11 The Society is incorporated in the Australian Capital Territory, but administered from a head office in Sydney. Its objective is to foster national and international co-operation and development of all activities in relation to cancer. These activities include funding cancer research. The members of the Society are similar cancer organisations in each of the States and Territories. The Tasmanian member is the Cancer Council of Tasmania. Members of the Society provide a significant amount towards cancer research in Australia each year, the amount in 1999 was $14,000,000. Whilst the Society does not control the allocation of funds to projects, its members adopt a uniform peer group review process for the allocation of research grants. When the Society receives funds for research, the funds are distributed to its State and Territory members on a pro rata to population basis for use in accordance with the purpose referred to by the provider of the funds.

12 The sole activity and aim of the Foundation is to fund cancer research. The Foundation is administered from Sydney and registered to raise funds in each Australian State and it receives funds from all over Australia. Since 1987 the Foundation has distributed in excess of $10,000,000 for cancer research by various institutions throughout Australia.

13 Both the Society and the Foundation are national organisations involved in funding research into cancer of any type. In my view, both of these organisations come sufficiently within the ambit of the intention of the testator to justify being objects of a cy pres scheme. Whilst it is clear that the testator intended to benefit one organisation only, it cannot be said that one of these organisations so completely conforms with the testator's intentions as to her bequest as to warrant excluding the other from being a beneficiary. The bequest will be divided equally between the Society and the Foundation. Subject to the submissions of counsel, the order I will make is that the cy pres scheme approved for the residuary bequest is that it be distributed equally between the Australian Cancer Society and the Australian Cancer Research Foundation for cancer research.