Charitable Trusts

The Attorney General is the Protector of Charities by virtue of the doctrine of parens patriae. The Attorney General represents the Crown as the protector of all property subject to charitable trusts. This 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 Legal.

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:
   1. copy of the will, instrument, order or other document establishing the trust;
   2. if the trust has been established other than in writing, details of the creation and nature of the trust;
   3. the reasons for the application by reference to evidence that the objects of the trust have failed necessitating consideration of a cy-pres scheme;
   4. 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;
   5. copies of any previous scheme or orders relating to the trust;
   6. names and addresses of the current trustees;
   7. names and addresses of any residual or default beneficiaries together with details of their potential interest in the trust property;
   8. information to the value of the trust property;
   9. address for service within New South Wales;
   10. 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;
   11. 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;
   12. 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:

   Legal
   NSW Department of Communities and Justice
   Locked Bag 5000
   Parramatta NSW 2124.

Application of a charitable gift by the Governor of New South Wales pursuant to the Sign Manual

In circumstances where a charitable gift cannot be given effect, and there is no charitable trust (whether express or otherwise), but a general charitable intention can be established, the Crown, exercising the prerogative of the Sign Manual may distribute the charitable gift.

This may occur in circumstances where a deceased person makes a testamentary writing which does not appoint an executor but otherwise purports to leave a gift for a recognised charitable purpose. The most common example is where the deceased has executed a document, instead of a will, stating that his/her property is to be given to the "poor" or to "medical research".

In such circumstances, an application can be made by the deceased's estate to the Attorney General, as the relevant minister representing the Crown for parens patriae matters, for the Governor to give a direction that the funds be applied pursuant to the Sign Manual to give effect to the gift.

Unlike an application under Part 4 of the Charitable Trust Act 1993 ("CTA") (see above), there is no monetary limit to the exercise of the Crown’s prerogative under the Sign Manual.

The Attorney General may determine that a gift be effected by the Governor of New South Wales pursuant to the royal prerogative of the Sign Manual. An Executive Council Minute is then submitted for approval by the Governor, giving effect to the gift.

However, if the Attorney General forms the view that the gift cannot be applied under the Sign Manual and instead requires a cy-pres scheme, the Solicitor General, as the Attorney General‘s delegate, may consider and dispose of the application as if it is an application brought under Part 4 of the CTA, if the value of the gift in question is $500,000 or less.

If you have any inquiries in relation to the Attorney General’s role in these matters, please contact the Office of General Counsel.

How to make an application

1. In support of an application of a gift under the Sign Manual an applicant is to supply the following information:
   1. a copy of the instrument or document purporting to dispose of the gift to charity;
   2. any relevant Court orders such as a grant of probate or orders pertaining to the construction of the gift in question;
   3. the reasons for application by reference to evidence that the gift cannot be given effect necessitating consideration of the Sign Manual;
   4. details of the proposed use of the gift with reasons for its selection as the most appropriate use of the gift;
   5. details of any other viable options considered for the use of the gift;
   6. names and addresses of the administrator/executor of the estate or person(s) holding the gift;
   7. names and addresses of any residual or default beneficiaries together with details of their potential interest in the gift;
   8. details of the value of the gift;
   9. address for service within New South Wales;
   10. if the proposed use of the funds involves charitable organisations/institutions, the application should furnish details of that organisation’s activities (e.g. copies of any constitutions, rules or memoranda of association); and
   11. consent of the proposed administrator/recipient of the gift.
2. The application should be signed by the executor/administrator of the deceased’s estate or other person(s) legally authorised to hold the gift or funds while an application is made.
3. The Attorney General may require additional information as considered necessary to assist with consideration of the application. The Crown Solicitor may communicate with the applicant for this purpose.
4. The application should be directed to:

   Legal
   NSW Department of Communites and Justice
   Locked Bag 5000
   Parramatta NSW 2124