Charitable trusts don’t have to treat everyone charitably

We have discussed ruling from the grave and the issues that it can cause. Recently the Trustees of a charitable trust approached the Supreme Court of New South Wales seeking advice.

Martin Sharp a well known, and significant, Australian artist with a substantial body of work died on 1 December 2013.

Sharp made a will in September 2012 that was amended by a codicil made in November 2013. Probate of the Will was granted in August 2014.

Sharp an only child, did not marry, and had no children. He grew up in and lived for the majority of his life and later owned the family home in Bellevue Hill known as “Wirian”.

Wirian is the major asset of Sharp’s estate. In 2008 Wirian was valued at of $8 million with the total estate valued at $11.25 million. Sharp’s Will provided that the whole of his estate, after payment of debts and expenses, was to be held in a trust known as the “Street of Dreams Martin Sharp Trust”(“the Trust”).

Wirian was a neighbouring property to the private school Cranbrook. Sharp wrote in his Will that he had developed an unfortunate and antagonistic relationship with the School. Sharp’s Will directed that his trustees not deal with or favour that School in the administration of the Trust established under this Will, and that as he never consented to its use requested that the school stop using his name in the Martin Sharp art prize.

The Executors of the estate sought clarification that the Will established, a valid charitable trust. Whether, the Executors may sell Wirian for the purpose of furtherance of the Trust; or appoint a substitute corporate trustee to administer the Trust

The Attorney General of New South Wales in her role as protector of charities was the first defendant. Sharp’s next of kin at the date of his death nor her power of attorney wished to be represented in the proceedings unless the court determined that the “will fails”.

The Court found that the Will established a valid charitable trust for the purpose of (among other things) the advancement of arts education; the preservation of ‘Wirian’ for carrying on Sharp’s works and projects and; the advancement of Sharp’s work on Luna Park and Tiny Tim.

The Court held that prior to the establishment of the Trust, the executors and trustees named in the Will have the power to sell ‘Wirian’ if it is not possible or practical to retain the property; and on the establishment of the Trust, the trustees have no power to sell ‘Wirian’. Similarly there is no limitation in the Will on who may be a trustee of the Trust and thus no reason why the trustee could not be a corporation.

The Court directed the estate pay the costs for the hearing.