AG the Protector of Charities

Lorna Backhouse lived not far from the Blue Mountains Botanic Garden at Mt Tomah (the “Mt Tomah Garden”), where she was a regular volunteer.

In January 1996, Lorna created a Will leaving money to the Royal Botanic Gardens and Domain Trust (“RBGDT”), on trust to establish “The Lorna and Clive Backhouse of Mt Tomah Scholarship” to be awarded every two years to a member of staff at the Mt Tomah Garden (the “Scholarship Trust”).

When Lorna died in May 2010. RBGDT received just over $1.1 million and with accumulated interest, the current value of the Scholarship fund is approximately $1.3 million.

RBGDT sought an order to amend the terms of the Will in order that it be able to award the scholarship annually and to more than one person in any year.

In earlier posts, I have explained that the Attorney General of New South Wales, has a legislated role as a protector of charities. In that role, the Attorney General and RBGDT have agreed that subject to the consent of the Court, an administrative scheme be ordered to give effect to RBGDT’s intention (the “Scheme”).

The RBGDT submitted what it believed to be a number of deficiencies in the Backhouse Scholarship including that it can only be awarded once every two years. Due to the limited number of staff at Mount Tomah Garden, and both their personal and professional commitments it is a challenge for the staff to be away from the Mount Tomah Garden for an extended period of time.

If the Scholarship could be awarded more often, it would enable more staff to take the scholarship advancing the collective knowledge in horticulture and/or plant physiology in the Mount Tomah Garden.

As the Scholarship is limited to one member of staff it cannot be used for group projects. RBGdT submitted that it would advance the knowledge in horticulture and/or physiology of plants of Mount Tomah Garden if the Scholarship Fund could be used to pay for a number of staff rather than one member of staff.”

The Court had no hesitation in approving the Scheme as although it alters the means it maintains the purpose of Lorna’s gift. The Court expressed it’s a belief that if Lorna’s views were able to be sought, she would be satisfied that her gift was to be used for the benefit of more people and more often to undertake the activities she wished to support. Approval of the Scheme permitted an annual award to be made and, where appropriate, to more than one person in any year.

The Court ordered that the property held subject to the charitable trust known as the “Lorna and Clive Backhouse of Mount Tomah Scholarship” (“the Scholarship Trust”) established pursuant to clause 5(f) of the Will of the late Lorna May Backhouse dated 4 January 1996 be administered in accordance with the administrative scheme, created by order of the Court pursuant to the Court’s inherent jurisdiction conferred under section 23 of the Supreme Court Act 1970 (NSW).






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