Blyth, Re [1997] QSC 30 [1997] 2 Qd R 567

IN THE SUPREME COURT OF QUEENSLAND O.S. No. 9438 of 1996 Before the Hon. Mr Justice Thomas [Re Rules of the Supreme Court] IN mE MA TIER of the Rules of the Supreme Court Order 3 Rule 20 and Order 64 Rule lA - and - IN mE MA TIER of the Trusts Act 1973 - and - IN mE MA TIER of the Succession Act 1981 - and - IN mE MATTER of JAMES FREDERICK BLym deceased REASONS FOR JUDGMENT - mOMAS J. Judgment delivered: 6 March 1997 CATCHWORDS: Counsel: Solicitors: WILLS, PROBATE & LETTERS OF ADMINISTRATION - Succession Act s.64 - delegation of testamentaay powers TRUSTS & TRUSTEES - powers of appointment - whether mere power or trust power - ceItainty of object - whether list ceItainty or criterion certainty test applies TRUSTS & TRUSTEES - charitable trusts - public benefit - Act of Elizabeth - whethe.o 'elimination of war' a charitable purpose - whether 'raising the standard of life' a chruitable purpose - separate purposes - Trusts Act s.104 CONFLICT OF LAWS - choice of law - construction - essential validity Mr Nickel for the Public Trustee Mr Samios for United Nations Association of Australia Mr Lyons for the Attorney-General Mr Mullins for the next of kin Official Solicitor to the Public Trustee for the Public Trustee Hemming & Hart for United Nations Association of Australia Crown Law Office for the Attorney-General copied for purpose of research reM)~~&etp~ar republication in any private study way without permission. ~- --~-----~~~-.:...:----------~~-~ -- 1 of 31 -- IN THE SUPREME COURT OF QUEENSLAND Before the Hon. Mr Justice Thomas [Re Rules of the Supreme Court] O.S. No. 9438 of 1996 IN THE MATTER of the RlIles of the Supreme Court Order 3 RlIle 20 and Order 64 Rule lA - and - IN THE MATTER of the Tntsts Act 1973 - and - IN THE MA ITER of the Succession Act 1981 - and - IN THE MATTER of JAMES FREDERICK BLYTH deceased REASONS FOR JUDGMENT - THOMAS J Judgment delivered 6 March 1997 James Frederick Blyth made his last will on 4 December 1937 at Colchester, England. He died in the Nazarene Nursing Home, Redcliffe, Queensland on 28 August 1986. He had assets in both England and Queensland of a total value exceeding $l.3 million (Australian). By clauses 2, 3 and 4 of his will he made gifts to various persons, but all those persons died during the forty-nine years between the making of the will and the testator's death. -- 2 of 31 -- 2 The executors named by the will were Mr Buteux and the Public Trustee (in England). Mr Buteux predeceased the testator, and the Public Trustee (England) has renounced any right to a grant. In the event, on 17 January 1991 the Public Trustee of Queensland was granted an order to administer the whole estate. states: The present application is for construction by the Court of clause 5 of the will. It "FROM AND AFTER the decease of the last survivor if such event shall occur before the expiration of twenty one years from the date of my decease my Trustees shall stand possessed of my Residuary Estate for a period to cease at the expiration of such period of twenty one years Upon trust to accumulate the income thereof in the way of compound interest by investing the same and the resulting income thereof from time to time in any investments authorized by law for the investment of Trust Funds and shall add accumulations to the capital of my Residuary Estate and at the expiration of the said period or if the last survivor shall die more than twenty one years after my decease then at the death of the last survivor the Public Trustee shall stand possessed of my Residuary Estate (including the said accumulations) Upon trnst to distribute and divide the same in such manner as in his uncontrolled discretion he shall think fit among such Organizations as in the Public Trnstee's opinion are working for the elimination of war and also among such Organizations as in the Public Trnstee's opinion are fonned for the purpose of raising the standard of life throughout the world and I declare that the division of the said Trust Fund is left entirely at the discretion of the Public Trustee and his decision as to the method of the division of my estate is final my intention being that the Public Trustee shall have all the powers of the Court in carrying out my general intention in like manner as the Public Trustee shall consider the Court would have done if this clause of my Will had been referred to the Court for their directions and any Charities or Organizations who consider they have a claim on my estate and have not received any part thereof shall have no claim against the Public Trustee or my estate." The words creating difficulty have been italicised. Obviously the words following the italics are also very relevant in understanding the testator's intention. A representative defendant (Mr Whitney) has been appointed on behalf of the next of kin. Mr Whitney appeared by counsel to submit that the gift in clause 5 fails, and that the next of kin are entitled as upon an intestacy. The identification of the next of kin who -- 3 of 31 -- 3 were living at the time of the testator's death would seem to be a difficult task, and the Public Trustee suggests that to do so in a satisfactory manner would require the services of a genealogist in the United Kingdom. That however will not be necessary unless the next of kin are found to have an entitlement. Some time ago the United Nations Association of Australia, Queensland Incorporated (to which I shall refer as "the UNAA") indicated to the Public Trustee its potential interest as a body meeting the criteria specified in clause 5. Subsequently, pursuant to directions given by Mackenzie J, the Public Trustee advertised in The Courier Mail on 23 March 1996 the criteria stated in clause 5 inviting claims from potential claimants. No further response was received in consequence of that advertisement. In the result I have heard submissions on behalf of the next of kin, the UNAA, the Attorney-General for the State of Queensland, and the Public Trustee. The questions raised by the Public Trustee during argument related to whether the gifts in d.5 were charitable, with supplementary questions whether charitable intent was general or specific, and whether a scheme was necessary. It seems to me however that there is an anterior question, namely whether the trustee has been gIven a valid discretionary power of appointment. There is also a question of choice of law. I therefore propose to consider this matter under the following questions. 1. Choice of law: England or Queensland? 2. Is there a valid discretionary power of appointment? 3. Are the gifts in c1.5 charitable? 4. If so, is the charitable intention specific or general? 5. If general, is there a need for a scheme? 6. Does the estate go to UNAA as the only possible donee? -- 4 of 31 -- 4 1. Choice of Law The question must be addressed, as it will emerge in later discussion that there are some divergences between relevant laws in the respective countries applicable to some of the issues that arise. There is little doubt that at the time he made his will the testator was domiciled in England; and that at the time of his death he was domiciled in Australia, and more particularly Queensland. The parties have accepted this as the basis upon which the matter should be considered. The property with which the court is concerned is movable property both In Australia and in England (compare Haque v. Haque (1965) 114 CLR 98, 107). The substantial case law and academic writings on this subject seem to lead to two essential propositions: (1) Questions of construction are determined according to the law of the testator's domicile at the time of making the will (Philipson-Stow v. Inland Revenue Commissioners [1961] AC 727, 761-762; Re Lungley [1965] SASR 313; Halsbury's Laws of England 4th ed. Vol 8 para. 966; Nygh, Conflict of Laws in A lIstralia 6th ed. p.569; compare s.26 of Succession Act 1981, and similar legislation in all other Australian states). (2) Most other relevant questions, including essential validity of the will (Lewis v. Balshaw (1935) 54 CLR 188, 193; Re Levick's Will Trusts [1963] 1 WLR 311, 318; Re Cunnington [1924] 1 Ch. 68, 71; Halsbury's Laws of England 4th ed. Vol 8, para 969), validity of a particular gift (Philipson-Stow v. Inland Revenue .,,- Commissioners [1961] AC 727, 761), status of a recipient (Re Fergusons [1902] 1 -- 5 of 31 -- 5 Ch. 483, 487), law applicable to the trust and its administration (Municipality of Canterbury v. Wyburn [1895] AC 89; Nygh, Conflict of Laws in Australia 6th ed. p.569-571), and in general the administration of the estate are determined according to the law of the testator's domicile at the time of his or her death. The main difficulty lies not in stating the principles but in identifying the dividing line between questions of construction of the will and the other matters which are sometimes referred to as the "legal effect" of the will (Sykes and Pryles, A ustralian Private International Law 2nd ed. p.701 et seq.). Broadly speaking questions of construction are those affecting the way in which the court endeavours to understand the intention of the testator. Lord Denning in Philipson-Stow (above) drew a distinction between seeing what a testator meant (construction) and finding out the law which regulates the testator's dispositions. His Lordship concluded: "Apart from this one question of construction, the succession to movables is regulated by the law of his domicile." (p.762) The last reference to domicile is intended as one to domicile at the time of death. (Cf. Halsbury (above) para. 969 and Nygh (above) p. 569). It has for example been held that the question whether a gift to a charity is valid is one of material or essential validity and therefore governed by the law of the testator's domicile at the date of death (MacDonald v. MacDonald (1872) LR 14 Eq. 60. I conclude as follows: (a) In construing the will III the sense of finding the testator's intention from the meaning of the words used, the applicable law is that of England. In' any event I do not think that there are any relevant differences in the approaches of the courts of the two countries in that kind of exercise. -- 6 of 31 -- 6 (b) In determining the validity of the dispositions and the effect to be given to them the law of Australia (and where applicable the law of Queensland) will apply. Some difficulties of application however remain. The question. which is about to be considered, namely whether the will contains a valid discretionary power of appointment, may involve two separate questions. One is whether the testator intended the ultimate beneficiary or beneficiaries to be determined according to the trustee's sole opinion as to whether an organisation met the necessary description, and that the trustee should have sole choice in giving effect to that opinion. The other is whether the words used amount to a valid discretionary power of appointment. Probably both questions need to be addressed. As to the first question there is no difference between the law in England and Australia on ascertainment and construction of intention. But as to the second question it is a possible view that the authorities in England and Australia are in conflict as to what is the appropriate test to apply in determining whether a power of appointment is void for uncertainty. I would regard that ultimate question as being one which goes to a question of validity. Accordingly I indicate that I shall endeavour to apply the law currently recognised in Australia as applicable to that question, bearing in mind that reference to English cases continues to be of considerable value in this area. Another issue where the difference between construction, testator's intention, and validity do not have tidy cut-off points is question 3 - is the gift in c1.5 a charitable gift? Here again questioris may be posed as to whether the testator's intention was charitable, and also whether that intention satisfies the applicable legal tests necessary to uphold such an intention. Once again, the end question which must be addressed is in my view one of validity. -- 7 of 31 -- 7 Questions 4 and 5 should also in my view be answered through the application of the law presently applicable in Queensland. Inter alia s.l 04 of the Trusts A ct may need to be applied. Similarly if there is to be any scheme administered, it must be prepared and supervised under local law. It may be noted that there is some difference between the laws and methods applicable to schemes in England and in Australia. 2. Is there a valid discretionary power of appointment? It was submitted that the beneficiary may be determined and appointed by means of a discretionary power of appointment conferred upon the trustee, and that the trustee. simply has the duty to select and appoint a beneficiary or beneficiaries, duly observing the criteria stated by the testator. This includes the question whether the words identify a body that the trustee must select, or whether they simply describe the type of body or bodies that the trustee might select. Discussion of these matters to some extent overlaps with matters that need to be discussed in the other questions, but it seems desirable to address first the nature of the power that has been conferred upon the trustee. Discretion to select The first point to note is that the trustee has been given a power of selection which needs to be exercised before executing the trust to distribute. The trustee is given the power "to distribute and divide .. in such manner as in his uncontrolled discretion he shall think fit" among such organisations as in his opinion fulfil a stated criterion. I do not think that there is any implication that the trustee must give equal shares to all such organisations as he thinks capable of qualifying, or that all eligible organisations must be -- 8 of 31 -- 8 given some benefit. The word "divide" often implies an equal division, but its meaning is controlled by context (Mills v. Farmer (1815) 19 Ves482, 490; 34 ER 595, 597 per Lord Eldon; .Jarman on Wills, 8th ed. Vol 3, p.1797:-1798). The distinction between a mere power of distribution and one which authorises selection is well recognised (Farwell on Powers, 3rd ed. pp. 528, 549, and 568-569; cf. Re Deakin (1894) 3 Ch. 565, 576). Here there is not only a power to divide in a discretionary way (see the words immediately following the italics on p.2 above), but also an express statement that organisations who consider they have a claim and have not received any part thereof are to have no claim against the trustee or the estate (see the last three lines of c1.5). That is a persuasive indication that the trustee's power of selection includes the right to exclude organisations that might be eligible for consideration. My conclusion is that the trustee has an exclusive power of selection, that c1.5 does not require the trustee to select every eligible organisation, and that the trustee has the power to distribute and divide in such portions as the trustee may decide. Trust or powel' Is there a trust requiring this power of selection to be exercised, or is it a mere power to select? Different factors will operate according to whether it is characterised as a trust or as a mere power. In the present case I have little doubt that the discretionary power of selection conferred upon the trustee is a power in the nature of a trust. The gift is of the residue which is bestowed upon the trustee expressly upon trust and there is no gift over in default. Plainly the testator intended that the power of selection and of appointment should be exercised. The discretionary power of selection conferred upon the trustee in this case is in my view a power in the nature of a trust. -- 9 of 31 -- 9 The power of appointment is a special power of appointment, as distinct from a general power. It is a gift to such member or members of a limited class of persons as the trustee shall select, as distinct from a general power to appoint anyone, including the trustee himself. Celtainty of object What certainty of object is required in a case where the trustee has a special power of appointment in the nature of a trust? Section 64 of the Succession Act 1981 (Qld) provides: "Celtain powers and tmsts not invalid as delegation of will-making 64. A power to appoint or a trust to distribute property, created by will, is not void as a delegation of the testator's power to make a will if the same power or trust would be valid if created by an instrument made inter vivos." This settled within this jurisdiction a controversy which still exists in other parts of Australia where a more restrictive approach is taken to trusts and powers of appointment under wills than in relation to trusts and powers of appointment inter vivos. A tendency has emerged in Australia (see Tatham v. Huxtable (1950) 81 CLR 639) to strike down dispositions in wills on the basis that a testator may not delegate to another his or her will-making power, and to treat certain dispositions where the trustee is entrusted with a discretion to select a beneficiary as therefore void. No such problem exists in England. The Australian decisions, Tatham v. Huxtable (above), Attorney-General (NSW) v. Donnelly (1958) 98 CLR 538, and Lutheran Church of Australia v. Farmers Cooperative Executors and Trustees Ltd (1970) 121 CLR 628 are far from clear, but they have been interpreted as laying down a restrictive rule (Horan v. James [1982] 2 NSWLR 376). They will be discussed a little later. -- 10 of 31 -- 10 The position in the UK may be thought to be a good deal clearer in the light of the decisions in Re Gulbenkian's Settlements [1970] AC 508 and McPhail v. Doulton (in Re Baden's Deed Trusts) [1971] AC 424. The former rule was that a trust to select from a class of beneficiaries failed unless the whole range of beneficiaries was ascertainable with certainty so that the trustees could consider all potential claims (IRC v. Broadway Cottages Trust [1955] Ch. 20). That case was overruled in Re Baden's Deed Trusts. The less stringent rule that applies to powers (the Gulbenkian Case [1970] AC 508) has now been extended to trusts. It is now accepted that neither a trust nor a power will fail merely because it is impossible to ascertain all potential members of the class. It is still necessary however to .be able to say with certainty whether any given individual is or is not a member of the class (Re Baden's Deed Trusts at 456). In particular Re Baden's Deed Trusts holds that the degree of certainty required for validity in such a power is "criterion certainty" as distinct from what has sometimes been described as "list certainty". Criterion certainty connotes such particularity in the criteria given by the testator as will enable the court to tell whether any given person or organisation is within the class or not. However the definition of the objects, though not necessarily permitting complete enumeration of the persons or bodies who might fall within the class, should not be "so hopelessly wide as not to form 'anything like a class' so that the class is administratively unworkable or .. one that cannot be executed" (per Lord Wilberforce in Re Baden's Deed Trusts atp. 457). If that is the test to be applied, the present case IS not particularly difficult to determine. The test is very broad, but it is workable. In Queensland s.64 of the 1981 Succession A ct makes it necessary to distinguish between a power of appointment in a will and a power of appointment in a document inter -- 11 of 31 -- 11 VIVOS. Powers of the former kind have sometimes been held "void for uncertainty" seemingly on the basis that the disposition amounted to an invalid delegation of testamentary power (Tatham v. Huxtable (1950) 81 CLR 639). In that case the executor was given power to distribute the balance of an estate ".. to others who in his opinion .. have rendered service meriting consideration by the testator". The basis of the majority judgment (Full agar and Kitto JJ) was that the clause amounted to an invalid delegation of testamentary power, stating that it was a "cardinal rule" that "a man may not delegate his testamentary power". Thus a power of appointment contained in a will was prima facie invalid, unless it fell within one of the recognised exceptions to the rule. Kitto J noted two such exceptions. One was the conferral of a general power of appointment under which the donee of the power can appoint the property to anyone, incl uding himself or herself. Such a power is tantamount to a gift of freehold title and therefore treated as a disposition of the property by the testator personally. The second exception recognised in Tatham v. Huxtable is that of a donee who is gIven power to appoint property among a specified class of persons only. This is not treated as a delegation of testamentary power because it is said -that the testator has in a sense already disposed of hislher beneficial interest in the property among such persons, and it only remains for the donee of the power of appointment to allocate their respective shares. However, if the class is not specified with list certainty, the donee of the power cannot identify all such persons and the selection of those to benefit would be that of the trustee not the testator. The power of appointment is invalid, not for uncertainty per se, but as an invalid delegation of testamentary powers. Latham CJ appears to have agreed with the majority in their analysis of the law, but to have construed the particular clause in question as falling within the first exception -- 12 of 31 -- 12 noted. (His Honour also noted charitable trusts as a third exception to the rule against delegation (p.646)). That approach forms the basis of the decisions in Lutheran Church of Australia v. Farmers Cooperative Executors and Trustees Ltd (1970) 121 CLR 628 and also underlies the reasoning of Kitto J in Attorney-General (NSW) v. Donnelly (1958) 98 CLR 538, 578. The Lutheran Church case, on which four judges sat, resulted in two judges (McTiernan and Menzies JJ) holding a provision invalid, and two judges (Barwick CJ and Windeyer J) holding it to be valid. This meant that there was no majority decision to displace the decision below to the effect that the disposition was invalid, and the appeal was dismissed. That case in any event was .. not concerned with the validity of testamentary powers of appointment, but rather with a power "to transfer ... property .. to the Lutheran Mission . . for building homes for aged blind pensioners". Barwick CJ and Windeyer J considered that Tatham v. Huxtable was not authority for any proposition other than that the disposition there considered was void for uncertainty. McTiernan and Menzies JJ apparently took the view that the case was an authority for the proposition that testamentary power cannot validly be delegated, and it would seem that this is the true basis of the finding of "uncertainty". Such a rule has led to considerable dissatisfaction. It is difficult to see why a person should not be able to dispose of property by will in the same way as he or she may dispose of it in hi~ or her lifetime. " The intellectual confusion involved in simultaneously accepting the existence of testamentary powers and the anti-delegation rule have been convincingly exposed: D M Gordon: Delegation of Will-Making Power (1953) 69 LQR 334. The historical basis for the rule is more than dubious: Hardingham, Neave & Ford, The Law. of Wills (1977), p 99." (per Hutley JA in Horan v. James [1982] 2 NSWLR 376, 38l.) -- 13 of 31 -- 13 Professor Campbell in The Enigma of General Powers of Appointment 1955-1956 7 Res Judicata 244 expressed the view ". . . if there is a rule which prevents a testator delegating to others his powers of testamentary disposition, it has no operation independent of the normal certainty requirements which apply in relation to dispositions inter vivos; a man may do by will exactly what he may do by dispositions inter vivos; the rule, if it exists, is 'simply a rule that no settlor and no testator may by means of either trust or power delegate to others the selection of beneficiaries from a limited but uncertain class .' ." This view was accepted by the Queensland Law Reform Commission in its report QLRC 22 (24 February 1978) which formed the basis of the 1981 Succession A ct. Once the restrictive approach in relation to wills is removed, as it is by s.64 of the Succession A ct, the trust power of appointment will be invalid only if it is too uncertain to be enforced by the courts. In Horan v. James [1982] 2 NSWLR 376 the residue of an estate was bequeathed to trustees "with power to ... transfer the same to whomsoever they shall .. decide . and I direct that the person . . appointed by my said trustees under the power hereby conferred shall be deemed to be my choice as beneficiary or beneficiaries and that choice shall not be subject to question or challenge by any person whatsoever." It included a direction that the trustees must not exercise power of appointment in favour of the testator's wife. Hutley JA observed, at page 381 " The rule is productive of arbitrary and confusing distinctions. The Queensland Succession Act, 1981, s. 64 abolished it. However despite the gallant judgment appealed from, I cannot see my way to break out of the mould into which the decisions of the High Court (Tatham v. Huxtable (1950) 81 CLR 639, and the Lutheran Church case) have put the law." Mahoney JA considered that the test of validity of a trust power of the present kind was to be taken from the Baden's Deed Trusts case (ibid, p 383), but felt constrained "loyally" to follow the prevailing views in Tatham v. Huxtable and in the Lutheran Church case and to uphold what was seen as a general rule against delegation of testamentary power. -- 14 of 31 -- 14 Accordingly the disposition was held invalid. There can .be no doubt that had legislation such as s.64 of the Succession A ct been in force in New South Wales, the disposition would have been upheld. on principles such as those expressed in Re Baden's Deed Trusts. As indicated above, Horan v. James [1982] 2 NSWLR 376 shows that insofar as the law of certainty of trusts is concerned (as distinct from delegation of testamentary power), the court regarded the principles stated in the House of Lords decision in Re Baden's Deed Trusts as acceptable. In McCracken v. Attorney-General [1995] 1 VR 67, J.D. Phillips J, in a useful review of the authorities, was prepared to apply the principles of Re Baden's Deed Trusts. Again,. in Herdegen v. FCT (1988) 84 ALR 271, 277, Gummow J regarded with approval the Baden's Deed Trusts explanation of the authorities as applicable to the question of certainty of identification of the objects of a trustee's discretion under a discretionary trust. Section 64 of the Succession A ct in my view removes the unduly restrictive approach taken towards powers of appointment in wills in such cases as Tatham v. Huxtable and the Lutheran Church case. I shall proceed on the footing that the law as stated in Re Baden's Deed Trusts contains tests that may appropriately be applied in the present matter. Application of principle to the provision in d. 5 Cliterion certainty Having regard to the number and variety of organisations that may be working for the elimination of war, and similarly the number and nature of organisations that may be working for the purpose of raising the standard of life throughout the world, it seems likely that there could never be "list certainty" of the organisations that are capable of being encompassed by each of those descriptions. Such organisations would include both -- 15 of 31 -- 15 unincorporated and incorporated associations. I shall not pursue the point. It seems quite obvious that a world-wide search could never produce a satisfactory total list of such organisations. However, "criterion" certainty is ill my view attainable with respect to the "organisations that work for the elimination of war" description. It does not matter whether the object is regarded as charitable or not. There are undoubtedly bodies that satisfy the requirement of being an "organisation working for the elimination of war". There is little doubt that the UNAA is such a body. Moreover the criterion is clear enough to enable it to be said with certainty that any given organisation is or is not a member of the class. However I have considerable doubts as to whether the same may be said with respect to organisations that are "formed for the purpose of raising the standard of life throughout the world". Does this encompass scientific organisations that conduct research into improvement of grain species or fish farms? Does it encompass organisations which lobby governments to introduce policies that will eliminate the greenhouse effect, or environmental organisations that take a world-wide view and try to preserve the planet for future generations? The phrase "raising the standard of life" means different things to most people. To some it may mean the raising of spiritual standards, and to others the provision of basic nutrition. This notion amply meets Lord Wilberforce's test of being "so hopelessly wide as not to form 'anything like a class' so that the trust is administratively unworkable". Not a purpose tIust Thus far the will has been considered on the basis of the law applicable to private trusts and powers of appointment, the underlying premise being that private trusts require -- 16 of 31 -- 16 ultimate certainty as to beneficiary. The imposition of a purpose is regarded as negating a gift to the person. "A trust to be valid must be for the benefit of individuals .. or must be in that class of gifts for the benefit of the public which the courts .. recognise as charitable in the legal .. sense of that term." (Bowman v.' Secular Society Ltd [1917] AC 406, 441) It was submitted that despite the power of appointment, the trust should be construed as a simple purpose trust in which case it can be valid only if it is for a charitable purpose. In support of this it was submitted that the testator was more concerned with the work of the relevant organisations than with their identities; and that the number of organisations that might meet the criteria was very large and not confined to Australia. It was submitted that it was therefore less likely that the testator wished to benefit a particular organisation than the purposes which he had identified. Those submissions however overlook the nature of a power of selection. A testator who confers a power of selection upon a trustee, confining it only by a prescribed criterion or purpose might have no specific organisation in mind, and indeed probably does not have a particular organisation in mind. Furthermore, the fact that very many organisations might exist which satisfy the relevant purpose does not matter if the trust is satisfied by selection of a limited number of eligible organisations. I therefore consider that these submissions do not justify what would in effect be the overlooking of the power of appointment. They are not purpose trusts. They are gifts to such particular organisation or organisations as may be selected by the trustee. The validity of a private trust which is devoid of charitable intent, where the certainty of object is attained by means of a power of appointment is well exemplified by Re Ogden, Bryden v. Samuel [1933] Ch. 678. In that case Lord Tomlin had to consider a bequest to Sir Herbert Samuel "to be by him distributed among such political .. bodies in -- 17 of 31 -- 17 the United Kingdom having as their objects .. the promotion of Liberal principles in politics as he shall in his absolute discretion select .. ". It was obviously a non-charitable bequest. At that stage two problems had to be surmounted. Firstly, could the members of the relevant bodies be identified; and secondly did the words of the bequest impose a trust that was invalid? The first problem was overcome by the evidence of Sir Herbert Samuel who said that he could ascertain all relevant members of all relevant bodies. With respect to the second problem, Lord Tomlin was unable to find any express language creating any trust and he was not prepared to imply one. Counsel had suggested that there was a trust for the promotion of Liberal principles, but Lord Tomlin said "The reference to Liberal principles is a reference to the characteristic by which those in the field of selection are to be identified. I can find no trust at all." (ibid page 683). It was therefore held that there was an absolute gift to the various members of the various voluntary associations that were identified by Sir Herbert Samuel. As noted above, it would seem that it is no longer necessary to show that all potential organisations in the class can be identified. Nor does the problem of identifying members arise in the case of associations that are incorporated; and the problem of identifying members of unincorporated associations has been circumvented by s.63 of the Succession Act 1981 (Qld). Plimary findings on question 2 (1) Clause 5 effects a discretionary class gift with respect to such organisations selected by the Public Trustee as in the Public Trustee's opinion are working for the elimination of war. (2) The power of appointment with respect to organisations formed for the purpose of raising the standard of life throughout the world fails for uncertainty. -- 18 of 31 -- 18 (3) Any gift intended under the last mentioned prOVISIOn can only be. saved if it survives the necessary tests in relation to charitable bequests. 3. Are the gifts in d. 5 charitable gifts? If my pnmary findings are correct, it is unnecessary to discuss further the gift referred to in finding number (1). That gift is to a person, not a purpose, and must be administered accordingly. However in case my primary conclusion is wrong, I shall consider, on the assumption that there is no valid private trust, the question whether the gift or gifts may be saved as gifts for charitable purposes. Separate pUl])oses It may be noted at the outset that under s.104 of the Trusts A ct a trust which includes both charitable and non-charitable purposes may be saved. The trust describes two purposes. The words "among such organisations as in the Public Trustee's opinion are working for the elimination of war and also among sllch organisations as in the Public Trustee's opinion are formed for the purpose of raising the standard of life throughout the world" shows that a discretion was reposed in the trustee with respect to two separate purposes or types of organisation. It should be read disjunctively (cf. Attorney-General v. National Provincial and Union Bank of England [1924] AC 262, 264). Even if it were regarded as a compendious single gift, if one of the purposes fails, under s.104 of the Trusts A ct the power of selection will be confined to organisations that pursue the purpose which has been found to be charitable (McCracken v. Attorney-General [1995] 1 VR 67, 82-83). I shall therefore proceed to consider each purpose on its own merits, and consider -- 19 of 31 -- 19 whether either is capable of being a valid charitable gift. Strictly speaking the discussion of the 'elimination of war' purpose is unnecessary if my primary finding number (1) (see p. 17) is correct; but discussion of the 'raising the standard of life' purpose is necessary in order to determine if that provision may be saved as a charitable trust. The 'elimination of war' pUipose To be charitable a trust must be within the spirit and intendment of the Statute of 43 Elizabeth Chapter 4 (Charitable Uses Act 1601). This requirement is preserved by s.103 of the Tn/sts Act, subject to its clarification of the tests in relation to facilities for recreation or other leisure-time occupation and of the term "facilities provided in the interests of social welfare". The conventional summary of charitable purposes recognises the following: relief of poverty • advancement of education advance of religion • other purposes beneficial to the community • recreational facilities provided in the interests of social welfare. The relevant heading here is "other purposes beneficial to the community". It will facilitate discussion to refer to the first purpose as the 'elimination of war' purpose and to the second purpose as the 'raising the standard of life' purpose. It is of course necessary to show not only that the purpose is charitable, but also that it is within the spirit and intendment of the preamble to the Statute of Elizabeth (compare Royal N A and I Association v. Chester (1974) 3 ALR 486). The preamble contains a non-exhaustive list of examples, and any purpose analogous to those that may be discerned in the list is included. (Income Tax Special Purpose Commissioners v. Pemsel [1891] AC 531,543). -- 20 of 31 -- 20 A wide range of cases may be found In which courts have considered "peace" purposes, some of them finding valid bequests and others finding them invalid. In Re Harwood [1936] Ch. 285 a gift to the "Peace Society of Belfast", in circumstances where no society of that name existed, was taken as revealing a "desire to benefit any society which was formed for the purpose of promoting peace and was connected with Belfast". Harman J had no hesitation in regarding that as a good charitable gift and as revealing a general charitable intent (p.288) and ordered that it be applied cy-pres. In Re Koeppler's Will Trusts [1986] Ch. 423 there was a gift to an institution known as Wilton Park "as long as Wilton Park remains a British contribution to the formation of an informed international public opinion and to the promotion of greater cooperation in Europe and the W est i~ general . .". The Court of Appeal held that the gift for the furtherance of such work created a purpose trust that was educational in character and likely to be for the public benefit. Accordingly it was charitable in nature and, since neither the wide and vague aims of the testator in carrying out that project nor the fact that political matters could be touched on by participants at the conferences affected the charitable nature of the trust, a valid gift had been effected. These decisions are consistent In approach with the American decisions of Parkhurst v. Burrill (1917) 117 NE 39 concerning benefits gIven to the "World Peace Foundation", and Assessors of Boston v. Worldwide Broadcasting Foundation of Massachusetts (1945) 59 NE 2d 188 where the gift was made "to foster, cultivate and encourage the spirit of international understanding and cooperation". Trusts for political purposes however will generally fail, although an ancillary purpose of this kind will not necessarily invalidate a gift (Re Bushnell (deceased) [1975] 1 All E.R. 721, National Anti-Vivisection Case [1948] AC 31 (per Lord Simonds)). Picarda -- 21 of 31 -- 21 in his work The Lmll and Practice Relating to Charities 2nd ed. p.154 submits that the promotion of peace is a political purpose and, therefore, not charitable. He asserts that if one asks the question "-Peace on what terms?" it cannot be answered without making a political decision. However it seems to me that this reasoning is in the first place too general in that it preempts findings of fact and of construction where matters of circumstance and degree may arise. Secondly the question posed by the author will frequently not even arise. A testator may state a wider obj ect than the ending of a particular war, and the question overlooks wider aspects of the purpose such as achievement of a general benefit by encouraging changes of attitude. Trusts in favour of Amnesty International were disallowed by Slade J in McGovern v. A-G [1981] 3 All E.R. 493 but the decision is severely criticised in Jacob's Law of Trnsts in A ustralia 5th ed. para 1051. Trusts have been upheld "for the benefit of German ex-soldiers disabled in the First World War" (Re Robinson, Besant v. German Reich [1931] 2 Ch. 122) and for the relief of distress in Europe (Re Pieper [1951] VLR 42,44). Neither the arguably political nature of the purposes in these cases, nor the fact that the money would be expended wholly outside the jurisdiction were regarded as· invalidating the trusts. Some decisions may be found where trusts with an international relations flavour or which would assist the ending of a particular war have been held invalid. These include Buxton v. Public Trustee (1962) 41 TC 235 where the trust was for "the improvement of international relations and intercourse"; and Webb v. O'Doherty [1991] TLR 68 where the trust was to support a "campaign to end the Gulf War" . Gifts tending to increase the safety of the country, as for example by promoting efficiency of the armed forces are regarded as charitable. In Downing v. FCT (1971) 125 -- 22 of 31 -- 22 CLR 185, 198, Walsh J regarded trusts of this kind as charitable "because they assist in the promotion of public defence and security". Some take the view that the best way to preserve peace is to be prepared for war, and that notion may underlie the "public defence and security" that is regarded as constituting a charitable purpose. Others may equally argue that peace may be promoted in other ways as well, and that such promotion equally contributes to a state of security that benefits the community as a whole. None of the above cases gives any authoritative answer to the present disposition, although on the whole they favour the conclusion that the elimination of war is regarded as beneficial to the community. The arguable question seems to be whether such a gift is also to be regarded as within the spirit and intendment of the preamble to the Act of Elizabeth. The elimination of war is certainly more ambitious and general than any of the specific purposes contained in the preamble, but the fact that it benefits others in the community as well as the aged and the impotent does not prevent it from being held analogous to the uses which are regarded by courts as charitable. Provision of what may be seen as the indispensables of a settled community or "fundamentals of the society" may be regarded as within the spirit of the preamble. In Incorporated Council of Law Reporting v. Commissioner of Taxation (1971) 125 CLR 659, 666-669, Barwick CJ, having reached the firm view the benefit of production of law reports accrues to the community as a whole, continued: "Out of certain of the instances given in the preamble .. a broad concept emerges of the kind of obj ect of public utility which will satisfy the quality of charity." His Honour then referred to various instances. which he observed "seem to· regard the prOVISIOn of some of the indispensables of a settled community as charitable". "The ability to move from place to place . . , protection of the land from ravage of the sea, -- 23 of 31 -- 23 security against enemies, are fundamentals of the society seen to be within the concept of charitable public benefit as much as assistance to the needy and as education of the generations. " In the previously mentioned case of Re Pieper [1951] VLR 42, 44, Smith J upheld a gift for the relief of distress in Europe, not on the basis of aid for the poor, but "within the fourth class as being a purpose of a public nature which is within the spirit and intendment of the preamble to the statute". Purposes that uplift the moral tone of the community are also regarded as satisfying that spirit and intendment eRe Weaver [1963] VLR 257; Re Inman (Deceased) [1965] VR 238, 242). These cases which concerned respectively trusts for the Animal Welfare League and the Royal Society for the Prevention of Cruelty to Animals, were upheld because they were deemed to elevate sentiments of humanity in mankind and consequently to be charitable. In the end, whilst it is an extraordinarily difficult task to determine whether a particular purpose is within the spirit and intendment of the preamble, the trend of judicial interpretation suggests that the purpose of elimination of war should be regarded as being within the necessary spirit and intendment. In my view work for the elimination of war may be regarded as promoting a benefit that accrues for the whole of the community, and as revealing a general charitable intent. If invalid as a private trust it could be saved as a charitable trust. The 'raising the standard of life' purpose The testator's object was certainly not the relief of poverty. It may equally benefit millionaires. "The standard of life" may be raised by improving standards or tastes in entertainment, art, cuisine, and perhaps even sartorial style. Some of the difficulties -- 24 of 31 -- 24 involved in the breadth of the concept have already been mentioned in earlier discussion (p. 15). It is unnecessary to repeat that discussion which reaches the conclusion that the phrase "raising the standard of life" means different things to most people. It is certainly a broad aim, well meaning and idealistic. But is it significantly charitable? If it is, then the fact that it includes a much wider class of non-charitable objects will not be fatal, as s.104(1)of the Tn/sts Act 1973 provides that "No trust shall be held to be invalid by reason that some non-charitable and invalid as well as some charitable purpose or purposes is .. included in any of the purposes . . for which . . an application of the trust . . funds is . . directed." The trust would then be construed as if no application of the trust property for any such non-charitable purpose had been so directed (s.104(2)). In the present case counsel for the Public Trustee submitted that in order to discern charitable intent in relation to this gift, it would have to be construed as a gift for the relief of aged, impotent and poor people. As already indicated I do not think that it can be fairly severed in this way. I cannot see how anyone who had to give effect to the gift could properly discharge it by reference to age, welfare, standing or poverty. Of course breadth of expression is not of itself a ground of objection. A broad expression of an idealistic purpose often aids rather than hinders a finding of charitable intent. But here I think it is too wide and vague to identify the nature of any charity intended. (In re Strakosch (Deceased) [1949] Ch 529, 536.) In a broad sense it might be seen as directed towards production of public benefit. It is not however a trust for the relief of poverty or the advancement of education or the advancement of religion, where public benefit is presumed unless the contrary is proved. In all other cases the aspect of benefit to the public must be affirmatively proved or clear to the court (National Anti-vivisection Society v. Inland Revenue Commissioners [1948] AC 31, 42, 65; Nelan v. Downes (1917) 23 -- 25 of 31 -- 25 CLR 546, 563). It is certainly not clear to me how this object could be carried out, let alone that the carrying out of its object would be of benefit to the public. And in any event, benefit to the public is not per se sufficient to establish charitable intent (Attorney- General v. National Provincial Bank [1924] AC 262, 265). The gift certainly would not survive the longstanding legal test that all the possible objects of the trust must be charitable (Morice v. Bishop of Durham (1804) 9 Ves. 399, 406; 32 ER 656, 659). It could only be upheld if s.1 04 of the Trusts A ct can save it. It can do so only if some charitable purpose can be found as well as a non-charitable purpose. Some divergence is to be found in the decisions as to the correct approach in applying that section. A very wide and liberal approach is suggested in Ford and Lee, Principles of the Law of Trusts 3rd ed. para 19630, and in McCracken v. Attorney-General (Vic) [1995] 1 VR 67, 78-83. On the other hand a more restrained approach is suggested in Jacob's Law of Trusts in A ustralia 5th ed. para 1059, and, as I see it, in Leahy v. Attorney-General (NSW) [1959] AC 457. We are here dealing with a compendious expression within which it is difficult to identify separate charitable and non-charitable purposes. Where a division of a single / purpose would defeat the testator's intention, s.104 cannot be applied. Such a division was found inappropriate in Roman Catholic Archbishop of Melbourne v. Lawlor (1934) 51 CLR 1, 23 ("to establish a Catholic daily newspaper"), in Perpetual Trustee Co Ltd v. John Fairfax & Sons Pty Ltd (1959) 76 WNNSW 226 ("advancement of deserving journalists"), and in Attorney General v. Cahill [1969] 1 NSWLR 85 ("Catholic boys' club"). In Downing v. Commissioner of Taxation (1971) 125 CLR 185, Walsh J (with whom the other members of the court agreed) said that -- 26 of 31 -- 26 "not . . . every gift for the purpose of providing benefits to members of a specified class of persons may be treated as capable of separation into a gift for the benefit of the poor members of that class and a gift for the benefit of those who are not poor. It does not mean, as was suggested in argument, that a gift for the benefit of stockbrokers may be remoulded by means of s.131 into a valid charitable gift for the benefit of poor stockbrokers." (ibid p.196) The statement of greatest authority on this question would seem to. be that of the Privy Council in Leahy v. Attorney-General (NSW) (1959) 101 CLR 611, 618. "Thus whether the gift be to orders of nuns, an object so predominantly charitable that a charitable intention on the part of the testator can fairly be assumed, or for (say) benevolent purposes, which connotes charitable as well as non-charitable purposes, the section will apply. Inevitably there will be marginal cases, where an expression is used which does not significantly indicate a charitable intention, and their Lordships do not propose to catalogue the expressions which will or will not attract the section. It may be sufficient to say that in the chequered history of this branch of the law the misuse of the words 'benevolent' and 'philanthropic' have more than any others disappointed the charitable intention of benevolent testators and that the section is clearly designed to save such gifts." It may be that this does not justify the application of the test "so predominantly charitable that a charitable intention on the part of the testator can fairly be assumed". It does however indicate an acceptance of the requirement that the overall gift should "significantly indicate a charitable intention". This is the view which is taken by the authors of Jacob's Law of Trusts in A ustralia 5th ed. at paragraph 1059. " . . . the section will be applied where the gift is for a purpose described by a compendious expression which is apt to include both charitable and non-charitable purposes, provided that the expression used significantly indicates a charitable intention on the part of the testator." This is consonant with the views of Dixon CJ and McTiernan J III Attorney- General (NSW) v. Donnelly (1957-1958) 98 CLR 538, 560. "It appears to us that what must be found in order to justify an application of the provision is a distinct or sufficient indication of an intention to authorise the application of . . the fund . . to what is clearly a charitable purpose even although the description which embraces the purpose is so wide that it may go beyond charitable purposes .. " -- 27 of 31 -- and 27 "The words are distributive and it is plain that by restricting their application they may be restrained to charitable objects ... In their partial operation as restrained under s.37D these trusts are in our opinion valid." In the present matter the sheer breadth and uncertainty of the non-charitable aspects, considered with the lack of any clear charitable object reveals a lack of anything that could be called a significant charitable intention. The foregoing discussion indicates why I think that a severance of this particular gift into charitable and non-charitable obj ects would be a remoulding of the provision not contemplated by s.1 04. In short, I am unable to uphold the existence of a "charitable purpose" in this particular gift within the meaning of those words in s.l 04(1). 4. Is the charitable intention (for the 'elimination of war' pmpose) specific or general? This question was posed by counsel for the Public Trustee. Although it is now not necessary to deal with it I shall respond to it briefly. Sometimes it is possible to identify a gift as being intended to go to a particular institution or person. In such a case, if no such institution or person exists, the gift will fail unless the court can infer a general charitable intention and allow the gift to he applied cy-pres. In Re Harwood (above) Farwell J considered two separate provisions. Under the first where the testatrix made a gift to a particular peace society which ceased to exist in her own lifetime, His Lordship was unable to infer any general charitable intent which would allow application of the cy-pres doctrine. With respect to a second gift however, which was to "The Peace Society of Belfast" when it was shown that no institution of that name had ever existed, His Lordship was able to find a general -- 28 of 31 -- 28 charitable intent, inferring that "she had a desire to benefit any society which was formed for the purpose of promoting peace and was connected with Belfast". It was not seriously submitted that there was any specific donee contemplated by the testator, and it seems to me that this particular question raises something of a false issue. If I am right in concluding that this gift is capable of being upheld as charitable, it is so because of the nature of its purpose rather than because it is a gift to any specific organisation chosen by the testator. Indeed one of the clearest aspects of the case is that he had no particular organisation in view, and left the choice to his trustee. The charitable intention is general. 5. If general, is there a need for a scheme? The answer is that there is no need for a scheme at this stage or at all. A scheme would become necessary only if the trustee failed to appoint any beneficiary pursuant to its power of appointment which has been discussed in question 2 above. One would expect the trustee to exercise that power, because it is a power in the nature of a trust, and the testator plainly expected and intended his trustee to exercise his discretionary power. I have held that the "raising the standard of life" trust fails both as an object of appointment and as a charitable purpose. In the event that the private trust failed, I have expressed the view that a general charitable intention is revealed in relation to the 'elimination of war' purpose. It would follow that if that trust had to be carried out it would be possible to formulate a scheme. -- 29 of 31 -- 29 6. Does the estate go to UNAA as the only possible donee? Although it cannot at this stage be said that the residuary estate must go to the UNA A as the only possible donee, it is the only eligible donee that has so far emerged. It is true that a special order was made by the court (Mackenzie J) designed to enable potential donees to come forward. However His Honour's order was not necessarily intended as a comprehensive or final order in this respect. In the context of this will, which gives considerable discretion to the trustee to select potential donees, it is not necessary that the court direct the trustee as to every possible step to be taken. The trustee could choose for itself to advertise extensively, if it saw fit to do so, with or without the court's direction to do so. In the context of the present case I can say that it would be appropriate for the trustee to advertise more widely than has so far occurred so that a better opportunity may be created for the reasonable exercise of the trustee's discretion. This requires, as the first step, the formation of an opinion as to what organisations are working for the elimination of war. I should not think that it would be necessary to advertise outside of Australia with respect to this particular purpose, although I would have thought that international advertising would have been necessary had the second purpose (raising the standard of life throughout the world) been upheld. If after such advertising no other eligible candidate emerges, it may be that there will be little difficulty in exercising the discretion. Even if other eligible candidates do emerge, there should be no particular difficulty in exercising the discretion and distributing accordingly. -- 30 of 31 -- 30 Orders I shall hear submissions as to form of order. It should include the following: (a) an order in terms of paragraph 2(a) of the summons, appointing Mr Whitney to represent the next of kin; (b) a determination that on the true construction of clause 5 of the will, the gift of residue is a good and valid gift to the extent that it is a gift on trust to be distributed and divided among such organisations as in the Trustee's opinion are working for the elimination of war; and that it is invalid insofar as it purports to be a gift on trust to be distributed and divided among such organisations as in the Public Trustee's opinion are formed for the purpose of raising the standard of life throughout the world; (c) an order that the costs of all parties of this application be taxed on a solicitor and own client basis and paid out of the estate. -- 31 of 31 --