Charitable Trusts
Charitable Trusts Act 1993
The Attorney General is the Protector of Charities by virtue of his role as parens patriae. The Attorney General represents the Crown as the protector of all property subject to charitable trusts. It is one of the Attorney General's prerogative powers.
In circumstances where a gift to a charitable organisation in a Will cannot be given because, for example, the recipient organisation is no longer operating, or has amalgamated or otherwise changed its name or objects, and if the value of the gift is $500,000 or less, an application is made by the executors of the estate or their legal representatives to the Attorney General under Part 4 of the Charitable Trusts Act 1993. If the value of the gift is more than $500,000 application must be made to the Court.
Following the receipt of an application under Part 4 of the Charitable Trusts Act 1993 ('the Act'), the matter is immediately referred to the Crown Solicitor for advice. The threshold question is whether or not a charitable trust exists. After due consideration the Solicitor General, under delegation from the Attorney General and with the benefit of advice from the Crown Solicitor, may approve a recommendation that a cy-pres scheme be implemented.
If the exceptions to the publicity requirements for cy-pres schemes outlined in section 15(3) of the Act do not apply, the requirements outlined in section 15(1) of the Act must be complied with. Section 15(1) provides that the Attorney General is not to establish the scheme unless the Attorney General (or a person authorised by the Attorney General) has, not less than one month previously, published in the Government Gazette or in a newspaper circulating throughout New South Wales a notice complying with section 15(2) about the proposed scheme, and the Attorney General has given due consideration to any representations or suggestions made in respect of the proposed scheme by any person.
If no representations or suggestions are made within one month of the publication of the notice, the order establishing the scheme is made by the Solicitor General, as the Attorney's delegate. Arrangements are then be made to publish the order establishing the scheme in the Government Gazette, in accordance with section 16 of the Act. Section 16(2) of the Act provides that the order takes effect 21 days after its publication in accordance with section 16 or such later time as is specified in the order. If an appeal against the order is made to the Court within that time, the order does not take effect unless the order is confirmed or the appeal is withdrawn or lapses.
If you have any further inquiries in relation to the Attorney's role in relation to these matters, please contact the Legal Services Branch.
How to make an application
1. In support of an application under section 13 of the Charitable Trusts Act 1993 an applicant is to supply the following information:
(a) copy of the will, instrument, order or other document establishing the trust;
(b) if the trust has been established other than in writing, details of the creation and nature of the trust;
(c) the reasons for the application by reference to evidence that the objects of the trust have failed necessitating consideration of a cy-pres scheme;
(d) details of the proposed scheme with reasons for its selection as the most suitable and effective within the cy-pres principle. Details of any viable options considered should also be provided;
(e) copies of any previous scheme or orders relating to the trust;
(f) names and addresses of the current trustees;
(g) names and addresses of any residual or default beneficiaries together with details of their potential interest in the trust property;
(h) information to the value of the trust property;
(i) address for service within New South Wales;
(j) if the proposed scheme involved other charitable trusts, the application should furnish details of the trust's activities together with the trustee's consent to the proposed scheme;
(k) details of the nature, structure and operations of the administrator / trustee proposed for the scheme should be provided including any constitution and rules of the organisation, if relevant;
(l) the consent of the proposed administrator / trustee to the scheme should be provided together with details (if not otherwise provided) of its intended implementation of the scheme.
2. The application is to be signed by all current trustees. If this is not possible, then details are to be given as to why it has not been possible to obtain signatures of such trustees.
3. If there are no trustees, or the current trustees are unavailable, interested parties may lodge an application and request that the Attorney General exercise his powers pursuant to section 13 (1) (b) of the Charitable Trusts Act 1993 to establish a scheme provide in support of such an application together with details of the nature of the interest held by the applicant and the reasons for the unavailability of the trustees.
4. The Attorney General may require such additional information and in such form as he may consider necessary to assist his consideration of the application. Once the Crown Solicitor's Office has received sufficient information from the applicant in relation to the trust, a submission in relation to the proposed scheme is sent to the Solicitor General (as delegate of the Attorney General). The Solicitor General reviews the submission and considers whether to authorise commencement of the proceedings. In doing so, close attention is paid both to the requirements of s. 9 and the proposed cy-près scheme. In particular, consideration will be given to whether or not the information provided indicates that that "the original purposes [of the charitable trust], wholly or in part, have since they were laid down ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust"; and the nature of the proposed cy-près scheme including its proximity to the spirit of the original trust.
5. Application should be directed to:
The Director
Legal Services Branch
NSW Department of Attorney General and Justice
GPO Box 6
SYDNEY NSW 2001