USE OF CY-PRÈS AND ADMINISTRATIVE SCHEMES BY AUSTRALIAN HIGHER EDUCATION PROVIDERS TO END DEAD HAND CONTROL OF CHARITABLE ASSETS

Australian higher education providers are recipients of large charitable gifts. Many of these gifts take the legal form of perpetual charitable trusts, creating significant endowment portfolios. However, charitable trusts often contain conditions or restrictions that the donor has placed on the use of the funds, presenting challenges for utilising these assets, particularly when the trust conditions have become impracticable or inexpedient to perform because they no longer reflect contemporary society or institutional practices. As a result, Australian higher education providers are increasingly seeking to amend or remove trust conditions using cy-près and administrative schemes. This paper undertakes a survey of Australian cy-près and administrative scheme cases involving higher education purposes and examines judicial approaches towards scheme applications, including the extent to which the promotion of both testamentary intent and the public interest in the effective use of charitable assets is considered. This survey uses philanthropy in the higher education space as an example of broader trends. In particular, the paper considers whether, in Australia’s current regulatory environment that seeks to balance public trust and confidence in the charitable sector with supporting an effective charitable sector, the ancient scheme juris diction provides a viable means of enabling higher education providers and other charitable gift trustees to access funds controlled by donors from the grave.