Deed polls are commonly associated with name changes. Still, they are also used in estate planning and trust administration, particularly when varying a trust deed to reflect changes such as the appointment or retirement of a trustee.
While unilateral in form, a deed poll can carry binding legal force, provided it sets out an intention or promise in favour of a specific person or entity.
In the context of trust management, a deed poll can simplify procedural steps—such as documenting a trustee’s consent to act or formalising a resolution—though legal advice is often essential to ensure compliance with duties, tax implications, and registration requirements.
Background
Street of Dreams Martin Sharp Ltd v Attorney-General for NSW [2025] NSWSC 546 concerns the Street of Dreams Martin Sharp Trust, a charitable trust established under the Will of the late artist Martin Sharp, who passed away in 2013. The Trust aimed to preserve the testator’s home and art collection. It would serve as a space for ongoing collaborative artistic work, including completing his unfinished projects.
The trustee company—Street of Dreams Martin Sharp Limited—now seeks a cy-près order from the Court to change the Trust’s terms. The company argues that carrying out the original purposes is now impracticable or seriously inconvenient. The Attorney General, as the protector of charities, supports the application. But the Court must still be satisfied that the modification is justified.
Sharp v Attorney General of NSW [2015] NSWSC 1580 determined the validity of the charitable trust. Stevenson J held that the Testator had created a valid philanthropic trust and confirmed the appointment of a corporate trustee under s 6 of the Trustee Act 1925 (NSW). This appointment aligned with the Testator’s intention.
The corporate trustee was appointed to administer the Street of Dreams Martin Sharp Trust, which was initially incorporated in 1981 as Street of Dreams Pty Limited and later converted to Street of Dreams Martin Sharp Limited (the plaintiff), a public company limited by guarantee to fulfil its role as a trustee. In December 2018, the Executors formally transferred the deceased’s property to the company through a trust deed.
The testator
Born in Sydney in 1942, the testator grew up in Bellevue Hill in a heritage-listed home called Wirian. He later inherited Wirian and used it as a collaborative artistic space. The testator was unmarried and had no children.
The testator’s career spanned various forms of artistic expression and holds a significant place in art history. He was a graphic artist, lyricist, and filmmaker. He gained prominence in the 1960s and 70’s for his psychedelic posters and album covers for bands, including Cream, with whom he co-wrote lyrics.
In London, the testator was significantly involved with the counterculture magazine Oz and shared a house called the Pheasantry with artists including Eric Clapton and Germaine Greer, further solidifying his place in the artistic community.
Returning to Sydney in the early 1970s, the testator lived in the Yellow House, an artist commune, and settled permanently in Wirian in 1978. He fosters a similar communal creative environment, welcoming artists to live and work alongside him.
From the late 1970s, the testator strongly advocated preserving Sydney’s Luna Park, developing an enduring artistic fascination with it and with the entertainer Tiny Tim, who featured prominently in the testator’s later works.
The testator completed his film project, Street of Dreams, produced at Wirian in 1990. Encapsulating many of these themes, it represents the testator’s collaborative artistic vision shared by many artists who worked with him. It fosters a sense of community and shared purpose in his creative endeavours.
The primary asset in the testator’s estate was Wirian, valued at $8 million. The total estate, including $2.1 million in artwork, furniture, and personal effects—mainly located at Wirian—was worth around $11.25 million. Despite the estate’s high value, the testator had limited income during his life and few liquid assets.
Wirian was one of the few private properties surrounded by Cranbrook School in Bellevue Hill. Although the testator had attended Cranbrook, he developed a strong dislike for its leadership. He opposed any sale or cooperation with the school, even though it acquired neighbouring properties. The testator reportedly resented that a family bequest went to Cranbrook instead of him. He would have used it to support his artistic legacy.
Clause 3 of the Will outlined the testator’s intention to preserve his artistic projects following his death. It included a wish to continue projects, particularly those involving Luna Park and Tiny Tim, and directed that, as long as practicable, Wirian serve as a venue for art education, showcasing his work and highlighting the cultural value of Luna Park and Tiny Tim.
Clause 4 of the Will established the Street of Dreams Martin Sharp Trust, directing the trustee to:
- Pay debts and testamentary expenses;
- Hold the remaining estate to support the preservation of Wirian.
- Promote Sharp’s work on Luna Park and Tiny Tim.
- Safeguard his artistic legacy.
The testator explicitly instructed the trustees not to cooperate with Cranbrook School.
Additionally, clause 4 recognised the high cost of maintaining Wirian, but emphasised that the property was integral to his life’s work. If there is any ambiguity about what constituted his “works,” the testator appointed a literary executor with the final authority to interpret the Testator’s works.
The Trustee Company applied to the Court for approval to execute a deed poll varying the terms of the Trust. This would change the terms of an existing charitable trust. The testator established the trust under the Will. After negotiations with the Attorney General, the proposed amendments were revised. They were finalised in a deed poll, which requires Court approval to take effect.
Evidence Submitted
The application was supported by:
- A statement of facts from the Trustee Company’s solicitors.
- An affidavit from Mr Donald Grieve KC, a company director, confirmed the facts and explained the rationale behind the amendments.
- An affidavit is from Mr Simon Cooper. He is from the interim National Art School (NAS) Company. This company is a proposed beneficiary of some trust assets and funding.
- Valuation evidence from Mr Malcolm Gunning (real estate) and Mr Andrew Shapiro (artworks and collectables).
- Relevant affidavits from 2015 proceedings, providing background on the Testator’s intentions.
Context and Reasons for the Application
The Trust’s primary asset is Wirian. It is a heritage-listed, multi-level house built in the 1920’s. It is expensive to upkeep and does not meet Testator’s safety standards. Efforts to preserve or repurpose it have been unsuccessful. This includes the Trust’s attempts to lease it to the National Archives. They also requested government funding. Current income from licenses and royalties is modest. It is about $40,000 annually. The Trust lacks the funds and skills to continue managing Wirian. They also can’t preserve the art collection it holds. This highlights the financial challenges the proposed amendments are to meet.
A 2016 Sydney Living Museums report highlighted a challenge. Preserving Wirian is impractical without significant endowment funds. These funds are estimated at $12 million to generate $360,000 annually. Wirian’s value is now $33 million. Excluding Cranbrook School from potential purchasers would significantly reduce its sale price.
Proposed Amendments
The Trust’s purposes will be revised to focus on two main areas:
1) The first is preserving and promoting Martin Sharp’s legacy, including his work on Luna Park and Tiny Tim.
2) The second is supporting artistic education for artists through scholarships, grants, and residencies.
The deed poll proposes:
- Sell Wirian for the best possible price and invest the proceeds into an endowment fund.
- Donate significant artworks to major public institutions (e.g., AGNSW, State Library, NAS) for preservation and public access.
- Sell the remaining contents (valued at $350,000) to fund the Trust’s revised purposes.
- Change the Trust’s name to “The Martin Shapshirts”.
- Permitting borrowing of up to $100,000 to cover legal and operational costs linked to the sale and transition.
Mr Grieve stated why he and his co-directors consider the amendments to the Trust Deed necessary. Thinking that the amendments proposed in the deed poll are desirable, it is no longer possible for the Trustee Company to keep Wirian due to the reasons given in the statement of facts. He considered that there is no choice but to donate the Testator’s art collection to one or more institutions. These institutions will be capable of looking after and displaying it. Selling Wirian is necessary. The proceeds can fund an endowment to achieve the purposes identified in the Testator’s Will, and can be done as best as possible without maintaining Wirian in its current form. Mr Grieve described the extensive negotiations with the three institutions, which would get the bulk of the Testator’s art collection with the Court’s approval. Mr Shapiro has valued the remaining contents of Wirian, which are to be sold, at $350,000.
The NAS would be one of several potential recipients of trust support to help artists across Australia. Mr Cooper described NAS as Australia’s Testator’s independent fine arts school.
The Trustee Company seeks Court approval to amend a charitable trust initially centred on preserving Martin Sharp’s estate. Due to financial and practical constraints, the Trust proposes selling Wirian. It also suggests donating key artworks. The remaining assets will be liquidated. The Trust will be repurposed to support artists and preserve Sharp’s legacy through public institutions and education programs.
Legal Framework for Cy-près Variation
The Charitable Trusts Act 1993 (NSW) modernises the traditional cy-près doctrine. This doctrine allows the courts to change a charitable trust’s purposes. They can do this when the original purposes are impossible to achieve. It is also applicable when they are impractical to fulfill. The donor must have had a general charitable intention.
Section 9 expands the test. It allows variation where the origin trust’s purposes are no longer a suitable or effective use of trust property. This is done by considering the “spirit of the trust.”
Section 10 presumes a general charitable intention unless the trust document shows otherwise.
The Court accepted Leeming JA’s interpretation in Perpetual Trustee Company Ltd v Attorney General for the State of New South Wales (The Will of the Hon George Nesbitt) [2018] NSWSC 1456. “Spirit of the trust” refers to the fundamental aims or values behind the Trust. It is not limited to its specific mechanisms.
Section 9 of the Charitable Trusts Act broadens the circumstances in which courts order a cy-près scheme. The current test is unlike the earlier strict common law necessit. Earlier, the charitable purpose had to be impossible or impracticable. Now, modification is permitted. This change occurs when the original purpose fails to offer a “suitable and effective” method of using the trust property. This relaxation of the threshold is consistent with judicial commentary. Parker v Moseley [1965] VR 580 recognised that strict impossibility is not required.
There are two key components to this statutory reform:
1) A relaxed threshold — shifting from “impossible or impracticable” to “unsuitable or ineffective”.
2)The Court must consider the “spirit of the trust” – involving a more abstract and purposive inquiry into the donor’s original charitable intent.
The “Spirit of the Trust”
This concept has deep roots in case law. It refers to the underlying or fundamental intention of the donor, discernible from the trust instrument. Contextual evidence can be traced through both case law (e.g., Attorney-General v Sherbourne Grammar School (1854) and Re Campden Charities (1880)) and statutory analogues (like the Education (Scotland) Act 1946), as this idea predates the 1960s legislation.
Judicial explanations emphasize the spirit of the gift. This includes analyses from Re Lepton’s Charity [1972] Ch 276 and Versani v Jesani [1999] Ch 219. They stress that it refers to the substance of the donor’s purpose. These cases emphasize the intent of the gift. It is not merely the literal terms of the Trust. There is an expectation that Courts examine beyond the gift’s technical form. They assess what the donor essentially intended to achieve.
For example, in Forrest v Attorney-General [1986] VR 187, the Victorian Court ordered a cy-près scheme. This was to remove a temporal restriction on charitable recipients. The restriction no longer aligned with the donor’s broader charitable purpose.
In Melbourne Anglican Trust v Attorney-General [2005] VSC 481, the court stressed the importance of understanding the gift’s “basic intention.” Peggs v Lamb [1994] Ch 172 further emphasized this. This understanding is crucial when applying the cy-près doctrine.
Cy-pres doctrine
The cy-près doctrine is a legal rule that enables courts to adjust the terms of a charitable trust when the original purpose has become impossible, impractical, or already achieved. The name “cy-près” means “as near as possible” in French, reflecting the aim of keeping the use of the trust’s assets as close as possible to the donor’s original charitable intention.
Key Elements:
- Purpose: Ensures charitable gifts remain beneficial to the public even if the original aim fails.
- Trigger: Invoked when the specified purpose can’t be fulfilled (e.g., the intended charity no longer exists or the objective is outdated).
- General Charitable Intention: The trust creator must have had a broader charitable aim beyond the specific gift.
- Court Involvement: Courts oversee and approve any changes to ensure they align closely with the settlor’s original intent.
Example Applications:
If a trust was created for a hospital that later closes, funds may be redirected to a similar healthcare organisation. If research funding is no longer applicable, the money might be reassigned to a comparable scientific field.
In essence, the cy-près doctrine helps uphold the spirit of charitable giving, even when the letter of the original terms can’t be followed
Statutory Purpose and Judicial Support
The rigidity of common law, unless the charitable object had become impossible (e.g., where no British people remained enslaved but not where a purpose had merely become outdated or inefficient), made cy-près applications impractical in many cases and prompted legislative reform. Statutory intervention enabled a more functional and modern use of charitable assets.
Later decisions, including Attorney-General (NSW) v Fred Fulham [2002] NSWSC 629 and Free Serbian Orthodox Church Diocese v Bishop Irinej [2017] NSWCA 28, affirmed that the revised test enables courts to better preserve the utility of charitable gifts and also respect donor intent.
Conclusion
Section 9 lowers the threshold for applying cy-près. Yet, the obligation to consider the “spirit of the trust” continues to guide the Court’s discretion. This principle applies in cases under the relaxed “suitable and effective” standard. It also applies where the original purpose has become impossible or impracticable. The approach strikes a balance between flexibility in managing charitable resources and fidelity to donor intent.
They acknowledged that the “spirit of the trust” refers to the fundamental aims or values behind the Trust. These are not merely its specific mechanisms.
Application Martin Sharp Trust
The Court accepted that the Testator’s” core intentions “are:
Preserving and enhancing his artistic legacy for public appreciation, and
Encouraging creativity in artists and aspiring artists, especially in collaborative environments
The Trust faced financial and practical constraints, especially with maintaining Wirian. Under these circumstances, the original form of the Trust was no longer effective. The Court held that the Testator anticipated this possibility. The Trust did not intend his legacy to fail if preservation of Wirian was not possible.
Court’s Findings and Orders
The Court accepted that retaining Wirian was not essential to fulfilling the Trust’s spirit.
The proposed amendments include the sale of Wirian. They also involve the donation of key artworks. Additionally, there is an investment of the Court’s sale proceeds into an endowment. Continued support for artists is also part of the proposal. These align with the core purpose of the Trust.
The Court approved the amended scheme under s 9 of the Charitable Trusts Act.
The Judge dismissed an argument. The argument claimed that a clause in the Will prevented dealings with Cranbrook School. This clause would block its potential to buy Wirian. Following the variation, the Trustee Company must seek the best price for the property, including a bid from Cranbrook if it benefits the Trust.
Alternative Relief and Costs
The cy-près application was successful. Thus, the Court did not need to consider alternative relief under s 81 of the Trustee Act 1925. It also did not seek judicial advice about the art collection.
The Court ordered payment of costs from the Trust to the:
- Trustee Company on an indemnity basis
- Attorney General on a party/party basis
Final Orders
- Declaration that the original purposes of the Trust are no longer suitable or effective under s 9 of the Charitable Trusts Act 1993 (NSW)
- Approval of the amended deed poll as a cy-près scheme.
- Orders for costs as outlined above.