Ryder v The Attorney General in and for the State of New South Wales [2004] NSWSC 1171

Reported Decision : 62 NSWLR 38

New South Wales Supreme Court

CITATION : Ryder v The Attorney General in and for the State of New South Wales [2004] NSWSC 1171 HEARING DATE(S) : 25/11/04 JUDGMENT DATE : 25 November 2004 JURISDICTION: Equity Division JUDGMENT OF : Young CJ in Eq DECISION : Gift a valid charitable gift

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

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Thursday 25 November 2004

2213/04 – RYDER v THE ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES JUDGMENT 1 HIS HONOUR: This case concerns the will made and published on 5 March 1991 of the late Alfred Frederick Jenson who died on 29 April 2002. The plaintiffs were granted probate of that will on 22 May 2003. The dispositive provisions of the will gave three legacies totalling $13,000 to various friends and the will then proceeds as follows: "All the rest and residue of my property to charities nominated by the 'Govt'." 2 The residuary of the will after payment of legacies, testamentary expenses and costs is probably in the vicinity of $250,000. 3 The proceedings were originally fixed for hearing before me on 10 December, but, at a pre-trial hearing, it seemed clear that they could be dealt with shortly this morning because, although a number of issues can arise if one looks at this will with critical eyes, all of those problems go away if the question of whether the will creates a valid charitable trust is answered in the affirmative. Accordingly, I will deal with that question. 4 I have been assisted greatly in its resolution by the written and oral submissions of Mr Willmott SC for the trustees, and the oral submissions of Ms Sharpe for the Attorney General. Mr Willmott is in the traditional position of trustee where the person who would otherwise take the residuary of the estate (in this case Audrey Moore), does not wish to debate the matter of having to put both sides of the question. He has done that with his usual skill. 5 Ms Sharp says that six issues arise: