NATIONAL TRUST OF AUSTRALIA (NEW SOUTH WALES) v AMOUR AND ANOR [1997] NSWCA 219

NATIONAL TRUST OF AUSTRALIA (NEW SOUTH WALES) v AMOUR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL EQUITY DIVISION

MEAGHER, SHELLER and COLE JJA 15 August 1997, 3 December 1997 [1997] NSWCA 219

Wills, Probate and Administration — testamentary instruments — construction of will — testamentary intention — gift — charitable purposes — condition or trust — impossibility of performance — whether void for uncertainty or otherwise fails.

Paul William Butler, who died on 16 June 1991, by his will dated 17 August 1990, left the residue of his estate to the National Trust for charitable purposes but subject to conditions which could not be fulfilled. The question for decision on this appeal was whether, as the trial Judge held, the gift failed.

Held:

The use of the word "condition" is not in itself sufficient to deny the overall intention which appears from cl10 to give the residue to the National Trust upon trust for the purposed stated.

The terms of the will indicate the testator intended to prepare a layout plan at the time the will was executed but did not intend that, if he failed to prepare

such a plan, the gift should fail. The preparation of the layout plan would naturally fall to the National Trust as trustee of the property.

One question which should have been raised in the proceedings was whether cl10 established a trust for charitable purposes and, if it was shown that at the date of vesting in possession it was impossible or impracticable to carry out those purposes, whether the property should be applied cy-prés and if so, how a scheme should be settled.

The gift to the National Trust in cll10 of the will was a valid gift to that body of the residue of the testator's estate to be held by it upon trust for charitable purposes.

Yates v University College, London (1875) LR 7 HL 438 applied; In re Wightwick's Will Trusts [1950] Ch 260 at 265; Congregational Union (NSW) v Thistlethwayte (1952) 87 CLR 375; Re Inman [1965] VR 238; In re Pinion [1965] Ch 85; The Attorney-General v The Wax Chandlers' Company (1873) LR 6HL | at 21; Wellbeloved v Jones (1822) 1 Sim & St 40; 57 ER 16; Society for the Propagation of the Gospel v Attorney General (1826) 3 Russ 142; 38 ER 530 referred to.