By Alexandra Jackson, University of Technology Sydney

This case note was originally published in the Animal Law Case Book, ed Sophie Riley (1st ed, 2015) and has been republished with minor edits by Voiceless with permission from the editor.   

Citation: Murdoch v A-G (Tas) (No 2) (1992) 1 Tas R 117

Court – Supreme Court of Tasmania 
Judge – Zeeman J 

FACTS OF THE CASE

Gibson, the testator, left part of his estate “to DAVID BROWN Veterinary Surgeon…for the benefit of animals generally.” Gibson did not know Brown personally, but he knew that he was associated with the Tasmanian Animal Protection Society and that he provided veterinary services to the society for free. By the time Gibson died and his will was considered, Brown had been dead for many years.

It was argued for the Public Trustee that the provision in the will did not create a valid charitable trust because a gift “for the benefit of animals generally” is not a gift for charitable purposes and that the gift therefore failed.

THE ISSUES

• Whether the gift was a gift to David Brown absolutely.
• Whether a gift for “the benefit of animals generally” constitutes a valid charitable bequest.

THE DECISION

The gift failed.

An absolute gift

It was held that the gift was not a gift to Brown absolutely.

A gift for the benefit of animals a valid charitable trust

It was also held that a gift for “the benefit of animals generally” was not a charitable gift, because it would not always benefit the community.

It was established in Leahy v The Attorney-General (NSW) (1959) 101 CLR 611 that a trust cannot be created for a purpose or object, as opposed to a trust created for a person or corporation, unless the purpose or object is charitable. A trust should be able to be performed by the Attorney-General, otherwise it must be performed by the person who will be the beneficiary of the trust. Since Brown was not the proper beneficiary of the gift in this case, the trust needed to be a gift for charitable purposes, otherwise there would be no one to perform it and it would fail.

Zeeman J analysed previous cases and found that valid gifts for the benefit of animals can also be said to benefit humans. He looked at Re Wedgwood [1915] 1 Ch 113 wherein Swinfen-Eady LJ stated that:

a gift for the benefit and protection of animals tends to promote and encourage kindness towards them, to discourage cruelty, and to ameliorate the condition of the brute creation, and thus to stimulate humane and generous sentiments in man towards the lower animals, and by these means promote feelings of humanity and morality generally, repress brutality, and thus elevate the human race.

Zeeman J noted that this statement clearly did not say that a gift for the purposes of animals is, without more, charitable; in fact it highlighted that preventing cruelty to animals benefits humanity by encouraging kindness towards humans. The Court differentiated between ‘protection’ and ‘benefit’ – a trust for the protection of animals is a valid charitable trust for the reasons adopted in Re Wedgwood [1915] 1 Ch 113. A trust for the “benefit” of animals is not a valid charitable trust because charitable gifts need to be for a “general public purpose beneficial to the community.”

The benefit to humans can be indirect. In Attorney-General for South Australia v Bray (1964) 111 CLR 402, the High Court found that a gift for “homeless, stray and unwanted animals” would not be for charitable purposes unless on its proper construction it referred to domestic animals, in which case it would benefit the community.

Tasmania had no law to save trusts for mixed charitable and non-charitable purposes. It was held that certain things that benefit animals would benefit humans, but that others would not. Therefore, the gift was not a valid charitable gift. In a jurisdiction that did provide for trusts for mixed charitable and non-charitable purposes, the position would perhaps have been otherwise as some activities benefitting animals are charitable because they also benefit humans e.g. rescuing stray domestic animals. The case of Attorney General (NSW) v Donnelly (1958) 98 CLR 538 provides an example of legislation which saves trusts which exist for both charitable and non-charitable purposes.

COMMENTARY

This case demonstrates that a gift made to assist animals for their own sake is not regarded as charitable for the purposes of a charitable trust. To be deemed charitable, the object of the trust either benefits humans, or serve to prevent cruelty to animals, rather than be for the benefit of animals generally.