Saving a Charitable Gift
Posted on July 10, 2015
Our last update looked at some of the issues that arise when a Not for Profit Group (NFP) receives a gift in a will which they have to use on certain conditions. An NFP risks losing this gift if they are unable to carry out the will maker’s conditions.
However, if this situation arises, the NFP can keep the gift if they use it in a way that is consistent with the conditions expressed in the will and if the gift exhibits a “general charitable purpose.” The following recent case from Western Australia provides an example of this.
Mr Venters died on 14 October 2013 and left just over $111,000 to the Cancer Council of Western Australia for the use and benefit of Cottage Hospice Shenton Park. During Mr Venters’ life, the Hospice was operated by the Cancer Council to provide palliative care services.
However, when Mr Venters died the Hospice at Shenton Park was no longer operative. Clearly, though, the Cancer Council still operated other palliative care services in Western Australia.
Therefore, the Public Trustee, as executor of Mr Venters’ estate, made an application to the court for the clause to be varied. The effect of the application was to allow the Cancer Council to use the gift “for the furtherance of palliative care within Western Australia.”
As the gift in the will was a charitable trust, the Public Trustee was required to obtain the approval of the Attorney General. After obtaining this approval, the Public Trustee was then required to advertise the variation to the will in the Government Gazette and West Australian newspaper.
The court noted that Mr Venters’ general charitable purpose was to fund palliative care services offered by the Cancer Council. Although Mr Venters’ prescribed method of funding palliative care services could not be carried out, clearly, the charitable purpose of the gift could be carried out in another way.
Accordingly, the court approved the variation.
Therefore, if you are lucky enough to receive a gift in a will but find you are unable to carry out the will maker’s conditions attached to the gift, you need to consider:
- Did the gift exhibit a general charitable purpose?
- Can you carry out that purpose in another way?
For any assistance with deceased estates please contact Richard Jackson or Christina Flourentzou at Lynch Meyer Lawyers.