Cram Foundation v Corbett-Jones & anor [2006] NSWSC 495

New South Wales Supreme Court

CITATION : Cram Foundation v Corbett-Jones & anor [2006] NSWSC 495

HEARING DATE(S) : 24 October 2005

JUDGMENT DATE : 26 May 2006

JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

DECISION : Order appointing representative of next-of-kin pursuant to UCPR, r 7.6. Declarations that gift in will is valid charitable gift, that plaintiff is successor of original trustee and holds on trusts of will, that gift over is void and that original purposes of trust are no longer suitable and effective method of using trust property. Order for implementation of cy pres scheme.

CATCHWORDS : TRUSTS – Charitable trusts – Procedure – difficulty in ascertaining and finding next-of-kin – whether representative should be appointed - Trustees – corporation assumes charitable functions and assets and liabilities of unincorporated society – whether corporation is successor of unincorporated society - Charitable gifts – gift for charitable purposes "as a memorial" to testator's family – whether charitable – Perpetuities - gift to charity with gift over on failure of charitable purpose – whether gift over void for perpetuity – whether at common law grantor's possibility of reverter upon termination of determinable fee is affected by rule against perpetuities - Schemes – Cy pres – for supervening impossibility – where original purposes have ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust – supervening failure of charitable purpose in context of void gift over – where particular charitable intent only –- general charitable intention not required – absolute gift required - distinction between limited or determinable interest and conditional interest - where gift not one for a limited period or until the occurrence of a particular event, but absolute gift to charity subject to a gift over on void condition subsequent – gift takes effect unconditionally and absolutely - cy pres is available - scheme approved.