Introduction

Students tend to approach the law of charitable trusts with a sense of relief. After the fairly dry and technical case law of private trusts, the eccentricities of testamentary trusts created for charitable purposes provide some colour.

For example, when Beryl Campbell died, she wanted her house to be used in perpetuity, apparently for the purpose of keeping the garden for the benefit of native birds. Two kind, thoughtful, Protestant, garden-loving, non-drinking non-smokers who did not take drugs or gamble were to be installed as caretakers. They were not to have cats or dogs, and were not to paint polished furniture. If no suitable relatives could be found to act as caretakers, the Geelong Field Naturalist Club was to find someone, preferably pensioners, who fitted the description above to care-take the home. This attempted trust failed, however. A valid charitable trust must be for a charitable purpose, and for the benefit of the public. This was neither, as the principles discussed in this chapter make clear.

A valid trust for a purpose

Charitable trusts differ from other express trusts in several important features. First, they are trusts for a purpose rather than for the benefit of identified or identifiable individuals. Trusts for purposes are usually invalid, as there is no person with standing to enforce them. The exception is trusts that are for valid charitable purposes, and for the benefit of the public. This has an important impact on tests for certainty. As there is no identifiable person who benefits from the trust, the usual tests for beneficiary identification (list certainty and criterion certainty) are irrelevant. What is important is that the settlor intended to create a trust for a valid charitable purpose. As there is no person who has sufficient standing to see the trust performed, locus standi is given to the Attorney-General. However, in all other respects the usual rules relating to the establishment of trusts discussed in chapter 15 apply.