First the purpose of creating safe and sustainable walking paths in the

First the purpose of creating safe and sustainable

This preview shows page 12 - 13 out of 16 pages.

purpose trust, the three specified purposes need to be considered.First, the purpose of creating ‘safe and sustainable walking paths in the Australian bush’ can only fall within the fourth head of Pemsel as a purpose beneficial to the community. In order to fall within the fourth head, public benefit must be affirmatively established: Incorporated Council of Law Reporting.Although not taught in detail, precedents exist which establish gifts for improving the amenity of a local area (such as gifts for a public park) confer a public benefit in the requisite sense. Arguments could also be made from first principles (eg. by analogy with purposes identified in the preamble to the Statute of Charitable Uses). It could also benoted that the Charities Act 2013 (Cth) specifically includes advancing the natural environment as a charitable purpose. It is therefore likely that the first part of this clause is a valid charitable purpose.Second, the purpose of lobbying ‘local councils to promote the benefits of bushwalking’ must be considered in the context of Aid/Watch. Following Aid/Watch, is clear that, under Australian law, there is no general doctrine which prevents trusts for political purposes (such as ‘lobbying’) from being valid charitable purpose trusts. Aid/Watch, however, left open the question of whether or not the fourth head of Pemsel encompasses the promotion of public debate for purposes other than those within the first three heads of Pemsel. An analogy may be drawn with the treatment ofpolitical purposes under the Charities Act 2013 (Cth). Section 12(1)(l) of the Charities Act refers to the purpose of promoting or opposing change to any matter established by law, policy or practice, where the change is in furtherance of another statutory purpose. As advancing the natural environment is one of the purposes identified as charitable under the Act, it might be argued that this part of the clause is valid. On the other hand, the clause does not refer to advancing the environment, but to promoting the benefits of bushwalking. As the promotion of sporting activities has traditionally not been regarded as a valid charitable purpose, and as bushwalking may be regarded as a sport, there is some doubt about the validity of the second part of the clause.Third, ‘any other purpose he or she thinks appropriate’ is not a compendious phrase, as it gives no ‘distinct or sufficient indication’ of an intention to benefit charity: McCracken. This part of the clause is therefore invalid. It may, nevertheless, be severed from the valid parts of the clause pursuant to s 7M of the Charities Act 1978 (Vic). While most answers were able to identify the clause as raising questions relating to charitable trusts, the treatment of the three separate purposes was not as precise as it should have been.Clause 3This clause creates a valid life estate in the testator’s house for his wife, with the executors being given a discretion as to how to deal with the proceeds of the sale of the house. In relation to the remainder, the executors have a discretion to distribute to the parents of school-age children in Halls Gap. As provision is made for how the it
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  • Three '18
  • Dr Susan Barkehall Thomas
  • Law, Wills and trusts, Trust law, AGV

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