Sir Edwin Marsden Tooth – Trust or Absolute Gift?

A charitable trust provides a will-maker with the ability to specify a particular cause they wish to benefit and enables the trustees greater flexibility in carrying out the will makers wishes in the administration of the estate.

Sir Edwin Marsden Tooth died on 27 May 1957. He formed Austral Motors Pty Ltd in 1924 becoming a leader of the motorcar industry in Brisbane and, towards the end of his life, a generous philanthropist gave generously to medical, educational and charitable institutions.

In 1956 Sir Edwin contributed £35,000 to the Brisbane Hospitals Board for the construction of the Edwin M. Tooth Lecture Theatre and the Edwin M. Tooth Laboratories for Research in Medicine at (Royal) Brisbane Hospital which were made available to the University of Queensland’s medical school. He endowed the Edwin Tooth scholarship for postgraduate study in medicine. Additionally, he provided £20,000 to enable Brisbane Hospital to appoint a visiting professor of medicine, surgery, or obstetrics and gynaecology each year. 

Sir Edwin’s estate was worth over £700,000. In his Will he provided a bequest to the Corporation of the Synod of the Diocese of Brisbane (the Corporation) to establish within the Diocese a home for the aged persons and it was named “The Edwin Marsden Tooth Memorial Home” (the Home). The Home was built and later, extended, through the use of government grants, other legacies and other gifts. 

Re the Will of Edwin Marsden Tooth

The Corporation sought the Courts declaration as to the proper construction of the Will. The question for determination concerns the true nature of one of the gifts in that will – was it absolute or was it subject to a trust? 

An absolute gift passes directly to the intended beneficiary; it is then theirs to do with as they wish. In contrast, a gift in trust means that the gift is controlled by the trustees.

The Corporation of the Synod of the Diocese of Brisbane submits that the following clause of the Will provides for an absolute gift to it. 

“… I direct my trustees to stand possessed of my [residuary estate] upon trust to pay the same to the following institutions in the proportions and for the purposes herein mentioned viz:- …

(ii) To the said Corporation for the purpose of establishing within the Diocese a home for Aged Persons to be described as ‘The Edwin Marsden Tooth Memorial Home’ …”

The Attorney- General, who has a right to intervene in the matter, submits that the gift was for a charitable purpose and that a trust was created. 

The Court held that, upon the proper construction of the Will of Sir Edwin Marsden Tooth, the Corporation is justified in regarding itself as having been beneficially entitled to the provisions which came to it from the estate of the deceased pursuant to the Will and in respect of which it has all the powers of an absolute owner. 

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