Case Note: Gray v. Australian Cancer Foundation for Medical Research and others: Estate Harold Boardman

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  • Country: Australia
  • Language: English
  • Document Type: Domestic Court Case
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Gray v Australian Cancer Foundation for Medical Research and others; Estate Harold Boardman. This
case concerned a bequest of some AUD 3 million to “The Cancer Research Foundation”. Following the
death of the testator, no such foundation was found to exis t. On the application of the executor of the estate
for advice, the court advised initially that the exec utor should commence court proceedings, and make
inquiries as to possible next of kin or charities that might be claimants or beneficiaries under a cy-pres
scheme. The executor sought to identify possible charity beneficiaries by means of an advertisement in a
national daily newspaper and a national medical journal, and by writing to four cancer organizations.
Following these actions, the claims of three cancer organizations were brought to the notice of the court.
On 11 May 1999 the Supreme Court of the state of New South Wales held that, since the testator had
shown a general charitable intent and that the purpose of the testator’s gift was to benefit a grant-making
general cancer research body, it was appropriate to order a cy-pres scheme under section 13(2) Charitable
Trusts Act 1993 dividing the gift equally between the three cancer bodies that had been identified.
Subsequently, two other cancer charities applied for a variation of the order to add them as beneficiaries of
the scheme on the grounds that there had been inadequate advertising of the scheme. Neither of the two
applicant charities had seen the advertisements and maintained that their interests as claimants would have
been discovered if the executor had researched th e cancer charity sector more diligently. The judge
observed that the court would not countenance substantial expenditure on advertising that would diminish
the funds available for charity, and that the adver tisements placed by the executor should have been
sufficient to come to the attention of interested ch arities. However, the key question was not whether this
was the case but whether, if it had been the case, the testator’s charitable purpose would have been better
carried out. On the evidence before the court, which showed that both the applicants were engaged in
specialized cancer research and suggested that a furt her division of the gift would reduce the effectiveness
of the beneficiaries’ grant programs (because cancer re search is so expensive that smaller grants are of
negligible benefit), the court was satisfied that the or iginal order should stand. Furthermore, the Attorney
General, who represented charities generally, submitted th at the scheme should not be altered, and section
11 of the Charitable Trusts Act 1993 had not altere d the common law rule that any application to alter a cy-
pres scheme must be made with his consent (applying A-G v Stewart (1872) LR 14 Eq 17).

(Gray v Australian Cancer Foundation for Medical Research and others; Estate Harold Boardman (No 2),
New South Wales Supreme Court, [1999] NSWSC 725, 8 July 1999 ). PB