Victorian Consolidated Legislation

Charities Act 1978 - SECT 2

PART I THE APPLICATION OF THE CY PRÈS DOCTRINE TO CHARITIES

Occasions for applying property cy près

2. Occasions for applying property cy près



(1) Subject to subsection (2), the circumstances in which the original
purposes of a charitable gift can be altered to allow the property given or
part of it to be applied cy près shall be as follows-

   (a)  where the original purposes, in whole or in part-

   (i)  have been as far as may be fulfilled; or

   (ii) cannot be carried out, or not according to the directions given and to
        the spirit of the gift; or

   (b)  where the original purposes provide a use for part only of the
        property available by virtue of the gift; or

   (c)  where the property available by virtue of the gift and other property
        applicable for similar purposes can be more effectively used in
        conjunction, and to that end can suitably, regard being had to the
        spirit of the gift, be made applicable to common purposes; or

   (d)  where the original purposes were laid down by reference to an area
        which then was but has since ceased to be a unit for some other
        purpose, or by reference to a class of persons or to an area which has
        for any reason since ceased to be suitable, regard being had to the
        spirit of the gift, or to be practical in administering the gift; or





   (e)  where the original purposes, in whole or in part, have, since they
        were laid down-

   (i)  been adequately provided for by other means; or

   (ii) ceased, as being useless or harmful to the community or for other
        reasons, to be in law charitable; or

   (iii) ceased in any other way to provide a suitable and effective method of
        using the property available by virtue of the gift, regard being had
        to the spirit of the gift.

(2) Subsection (1) shall not affect the conditions which must be satisfied in
order that property given for charitable purposes may be applied cy près,
except in so far as those conditions require a failure of the original
purposes.

(3) References in this section to the original purposes of a gift shall be
construed, where the application of the property given has been altered or
regulated by a scheme, by or under an Act or otherwise, as referring to the
purposes for which the property is for the time being applicable.

(4) It is hereby declared that a trust for charitable purposes places a
trustee under a duty, where the case permits and requires the property or some
part of it to be applied cy près, to secure its effective use for charity by
taking steps to enable it to be so applied.

(5) This section applies to an alteration or regulation by or under an Act of
the original purposes of a gift made before, on or after the commencement of
section 15(1) of the Health Services (Further Amendment) Act 1998.