From 30 June 2013 any charity registered with Australian Charities and Not- for- profits Commission (ACNC) must lodge an Annual Information Statement. That statement will contain details of the activities of the charity in the preceding 12 months. If a charity is inactive, ACNC may eventually deregister it.

It would be no excuse that the charity shell was being maintained simply to receive bequests which may or may not materialise into the future. Instead of a charity continuing to retain a skeleton structure purely for this purpose, we suggest a more appropriate set of actions would be:

  1. publish and announce that the charity is being wound up, especially among known donors and potential bequest makers;
  2. if bequests are known about, advise Will makers to update their Will;
  3. maximise the chances of saving a bequest by having it fall into one of the following three exemptions,
  1. ascertain if there is a true successor who can take the gift:

  2. What is a true "successor"? An entity whose objects mirror those of the charity being wound up; a related entity with the same ultimate controllers; or an entity eligible to receive surplus assets of the charity on its being wound up.

  1. ascertain if the gift can be added to other property held by a charity continuing to be held subject to a charitable trust, notwithstanding that the named charity is wound up:

  2. How can property be added? This can be explained by example: where a charity ceases operating from a fixed address and sells the property eg an institution for the disabled, but retains the proceeds of sale on charitable trust and continues work with disabled persons, a subsequent gift could be added to the charitable trust fund.

  1. prove the gift was intended for a work or purpose of a charity which it is practicable to apply to that same work or purpose, notwithstanding the original institution no longer exists

  2. (Cy pres scheme): Cy pres: may allow a bequest for example to St Vincent de Paul for its work with homeless men, to be paid to another charity for its work with homeless men, if St Vincent de Paul ceased to exist.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.