Victorian Consolidated Legislation

Charities Act 1978 - SECT 3

Application cy près of gifts of donors unknown or disclaiming

3. Application cy près of gifts of donors unknown or disclaiming



(1) Property given for specific charitable purposes which fail shall be
applicable cy près as if given with a general charitable intention, where it
has been given-

   (a)  by a donor who, after such advertisements and inquiries as are
        reasonable, cannot be identified or cannot be found; or

   (b)  by a donor who has executed a written disclaimer of his right to have
        the property returned.

(2) For the purposes of this section property shall be conclusively presumed
(without any advertisement or inquiry) to have been given by donors who cannot
be identified, in so far as it consists-

   (a)  of the proceeds of cash collections made by means of collecting boxes
        or by other means not adapted for distinguishing one gift from
        another; or

   (b)  of the proceeds of any lottery, competition, entertainment, sale or
        similar money-raising activity, after allowing for property given to
        provide prizes or articles for sale or otherwise to enable the
        activity to be undertaken.

(3) The court may by order direct that property not falling within subsection
(2) shall for the purposes of this section be treated (without any
advertisement or inquiry) as having been given by donors who cannot be
identified, where it appears to the court either-



   (a)  that it would be unreasonable, having regard to the amounts likely to
        be returned to the donors, to incur expense with a view to returning
        the property; or

   (b)  that it would be unreasonable, having regard to the nature,
        circumstances and amount of the gifts, and to the lapse of time since
        the gifts were made, for the donors to expect the property to be
        returned.

(4) Where property is applied cy près by virtue of this section, the donor
shall be deemed to have parted with all his interest at the time when the gift
was made; but where property is so applied as having been given by donors who
cannot be identified or cannot be found, and is not so applied by virtue of
subsection (2) or (3)-

   (a)  the scheme shall specify the total amount of that property; and

   (b)  the donor of any part of that amount shall be entitled, if he makes a
        claim not later than twelve months after the date on which the scheme
        is made, to recover from the charity for which the property is applied
        a sum equal to that part, less any expenses properly incurred by the
        charity trustees after that date in connexion with claims relating to
        his gift; and

   (c)  the scheme may include directions as to the provision to be made for
        meeting any such claim.

(5) For the purposes of this section, charitable purposes shall be deemed to
"fail" where any difficulty in applying property to those purposes makes that
property or the part not applicable cy près available to be returned to the
donors.

(6) In this section, except in so far as the context otherwise requires,
references to a donor include persons claiming through or under the original
donor, and references to property given include the property for the time
being representing the property originally given or property derived from it.

(7) This section shall apply to property given for charitable purposes,
notwithstanding that it was so given before the commencement of this Act.