By Michael Croft, 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: Attorney-General (SA) v Bray (1964) 111 CLR 402
Court – High Court of Australia
Judge – Dixon CJ, and Kitto, Taylor, Menzies and Windeyer JJ
Date of Judgment – 25 February 1964
FACTS OF THE CASE
The will of a testatrix directed her trustee (which was a trustee company):
- To purchase and equip a home for the maintenance and care of, or otherwise for mercifully and kindly dealing with homeless, stray and unwanted animals; and
- To invest the balance of her estate and apply the income for the permanent upkeep of the home.
The will also empowered the trustee to postpone execution of the trusts for as long as was necessary to accumulate sufficient funds to carry out the wishes of the testatrix. In addition, the will allowed the trustee to postpone realisation of the estate for as long as the trustee thought fit.
The trustee applied to the Supreme Court of South Australia to determine whether the trusts were valid and practicable. A charitable trust is a trust made for a purpose, as opposed to a trust made for nominated beneficiaries. In order for a charitable trust to be valid the court must find that was created for “charitable” purposes. Precedent already existed that permitted a person to create a valid charitable trust for the care of domestic animals. The issue in this case was whether this concept could extend to stray animals. If not, the trust under consideration would not be valid, and stray or homeless animals would effectively be excluded from the benefit of such arrangements. The AttorneyGeneral and Bray, who represented the testatrix’s next of kin, were joined as defendants. Napier CJ ordered an inquiry regarding the trust’s practicability. The result of the investigation was that there were insufficient funds to carry out the trusts. The Court held that although the trusts were valid, they had failed, and ordered that the funds must be distributed according to the rules of intestacy.
The Attorney-General appealed to the Full Court, seeking an order that the funds be applied cy-pres. The doctrine of cy-pres would have allowed the Court to carry out the wishes of the testatrix as near as possible to the intention expressed in the will, even though literal compliance with the will may not have been possible. Bray cross-appealed, seeking a declaration that the trusts were invalid. If the trusts were invalid, the estate would go to the next of kin. The appeal was dismissed, and a further appeal was made to the High Court.
- Whether the trusts were valid charitable trusts.
- Whether the trusts were practicable.
- Whether the powers to postpone execution and realisation of the trusts rendered them invalid.
The High Court held that the trusts were both valid and practicable, and that the powers to postpone execution and realisation did not render them invalid.
Whether the trusts were valid charitable trusts
The Court unanimously interpreted the words “homeless, stray and unwanted” animals as referring to domestic animals, that is, “such animals as are commonly kept and cared for in and about human habitations”. It was noted that English authority dictated that the care and protection of such animals is a valid charitable purpose. Kitto J (with whom Taylor and Menzies JJ agreed) cited the reasoning of Swinfen Eady LJ in In re Wedgwood  1 Ch 113, which was approved by the House of Lords in National Anti-Vivisection Society v Inland Revenue Commissioners  AC 31: “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”. Thus, assuming practicability, the trusts were considered valid charitable trusts.
Whether the trusts were practicable
The Court recognised the test of practicability as encompassing a determination of whether, at the time of the testatrix’s death, it was either practicable to carry her intention into effect, or there was any reasonable prospect that it would be practicable to do so at any future time. On application, the Court held that it could not be demonstrated that the trusts were impracticable. Their practicability had been explored insufficiently, and the inquiry was based on erroneous assumptions. Dixon CJ construed the trust as regarding the establishment of the home as essential, therefore precluding the possibility of a cypres application without such a home. Kitto J, noting the absence of particularity as to the specifics of the intended home, recognised the force of the argument that the home was merely a potential means for serving the general charitable purpose. However, both he and Windeyer J ultimately considered it unnecessary to determine whether the establishment of a home was essential.
Whether the powers to postpone execution and realisation of the trusts rendered them invalid
The Court unanimously held that as the fund was given to charity immediately, the powers to postpone execution and realisation did not offend the rule against perpetuities. The rule against perpetuities limits a person’s ability to control their property forever after their death. Kitto J stated that the powers expressed in the will did not postpone the allocation of the estate to the charitable purpose; rather the powers were relevant to the acts that the trustee was under a duty to perform. Further, Windeyer J noted that the powers did not impose a condition precedent to the trust taking effect.
The significance of this case for animal law purposes lies in its examination of what defines “domestic animals”, and its affirmation that a trust for the care and protection of such animals can be a valid charitable trust. This last point is noteworthy because the general rule is that an express trust must be created either in favour of human beneficiaries, or for recognised charitable purposes. The reasoning of the High Court is also instructive because it reinforces the need for care and detail in drafting trusts involving animals. This is particularly important with respect to trusts intended to be created in favour of a specific animal, as might occur with companion animals. Where it cannot be established that the trust has been created for a purpose, the trust will be declared invalid. See also Attorney General (NSW) v Donnelly (1958) 98 CLR 538, 579.