Kostka v The Ukrainian Council of the latest Southern Wales Incorporated 2013 NSWSC 222 (Supreme Court of brand new Southern Wales, Young AJ, 26 March 2013)
This case concerned construction of this will of Taras Bodlak (the dead), whom passed away on 2 January 2010, aged 95. The deceased left nine gift suggestions in the 1996 will, as follows:
- Australian Shevchenko Trust, Ukrainian Studies Foundation in Australia Limited in Lidcombe NSW: 10%.
- Ukrainian Youth Association of Australia Ltd in Lidcombe NSW: 10%.
- Ukrainian Class in Lidcombe NSW: 10%.
- Ukrainian Ballet-Dancing Groups, School of Music and Arts in Lidcombe NSW: 10%.
- Ukrainian prisoners that are political Ukraine: 5%.
- Ukrainian War Invalids in Ukraine: 5%.
- Ukrainian Ladies Association in Lidcombe: 5%.
- Renovation of Ukrainian Hall in Lidcombe NSW: 5%.
- Ukrainian Catholic Church in Canberra: 5 percent.
Problems arose because of the interpretation of those gift suggestions. Furthermore, there is no setting up of any trusts when you look at the might, or any specification of purposes, but rather outright gift ideas to organizations, including some which were unincorporated.
Their Honour stated that the basics had been well-established (at 3):
- Can there be any one human body which precisely matches the description within the will? If therefore, that human human body provides and no further enquiry is made.
- Or even, the court can get proof of surrounding circumstances yet not direct declarations of intention to discover who was simply meant.
- If there are two main or maybe more figures which precisely answer the description, then your court can look not just at surrounding circumstances but in addition direct declarations of intention.
In this instance, there have been no systems or organisations which exactly matched gift ideas 3 to 8 in the list into the might. This required a cy-pres solution. Which means in instances where a testator discloses a broad charitable intent ( maybe maybe not a particular intention to profit the known as organization), nevertheless the description associated with the beneficiaries is confusing, the court can authorise a circulation amongst bodies whose names are near to the description utilized by the testator in their will, so long as the Attorney-General (inside the part as protector of charities) consents. The events was in fact to mediation additionally the Attorney-General had consented towards the mediated arrangements made.
Regarding the dilemma of basic intent that is charitable their Honour stated that (at 16–17):
The scheme for this will shows an intention to profit a number of teams with Ukrainian or church connections you might say in a way that there is certainly clear advantage towards the Ukrainian community. Although Lidcombe is specified, it is really not unusual for categories of individuals arriving at Australia from European countries or Asia to cluster together in particular localities, whoever impact nonetheless spreads for the State associated with the country. I therefore never see this guide being a barrier up to a choosing that the presents may generally benefit the community. It really is quite clear that most counsel and lawyers consider that, because of the feasible exclusion of this gift in paragraph 7 to your Ukrainian ladies Association in Lidcombe and that respecting the hallway in paragraph 8, most of the gifts in 1 to 9 are charitable as that term is grasped in Australian legislation. I really do not require to worry that a few of the systems or almost all of the bodies be seemingly unincorporated associations while the proof that has been handled when you look at the mediation shows that either you can find corporations or trustees or any other main reasons why there’s no issue when you look at the unincorporated relationship being designated.
Consequently, there clearly was a broad charitable intent shown in the might. The cy-pres recipients for the charitable presents at 3 to 6 associated with the list that is deceased’s been determined at mediation, and were incorporated into their Honour’s sales.
But had been the gift ideas towards the women’s relationship as well as the Ukrainian hallway charitable? When it comes to to begin these feasible gift suggestions, there have been two contenders: Ukrainian Women’s Association, Lidcombe branch and Ukrainian Women’s Association in Australia, State Executive of NSW. His Honour considered the four classic purposes that are charitable enunciated in Pemsel’s instance. Did the present belong to one of these brilliant? The sole one that is possible the fourth head of charity, ‘other purposes good for the community’.
An organization that is purely for social or leisure purposes is not charitable, however as their Honour noted ‘the trend of authority seems to be moving in direction of upholding such presents where there are many extra features’. In cases like this, the Ukrainian Women’s Association in Australia, Lidcombe branch had things which their Honour felt had ‘a charitable flavour’ (at 26). The Lidcombe branch produced big a number of donations to Ukrainian based figures in Australia and offshore including contributions towards the Ukrainian School at Lidcombe to help needy kids in Sokal Ukraine, to deliver clothes to your poor of Ukraine, also to subscribe to the veterans for the Ukrainian Partisan Army located in the Ukraine that do perhaps perhaps not get a veteran’s retirement and therefore are in bad circumstances. The branch additionally endeavoured to offer help for elderly past people.
Their Honour reviewed the case that is relevant, of which there was clearly small, and people that there have been contained ‘very few good analogies’ (at 34). These instances included Victorian Women Lawyers Association Inc v Federal Commissioner of Taxation 2008 FCA 983. If that’s the case, the court held that the purposes regarding the organization must be evaluated holistically, within the light of this organisation’s development and history. In this respect, His Honour said (at 30):
It can appear to me personally that inside the ambit of what’s being considered in developing that list would consist of a team of ladies fulfilling alongside the common purpose of marketing Ukrainian tradition and seeking to take care of persons of Ukrainian beginning in needy circumstances.
He determined that (at 44–45):
It should be recognized that there surely is no choice into the typical legislation globe which goes quite in terms of the thing I need certainly to determine into the case that is present. Further, we noted 10 years ago in Radmanovich v Nedeljovic that this appeared as if a gap that is unwholesome charity legislation. This indicates to me now, but, that that space is slowly being paid down. We now start thinking about, when you look at the light for the product We have evaluated, that in twenty-first century brand New Southern Wales a trust in preference of a small grouping of ladies of a certain ethnicity, who seek a lot more than mere fun and social sexual intercourse, but in addition to help folks of exactly the same cultural team and distribute that culture to help the community purposes of a small grouping of Australians of a particular ethnic beginning, is a charitable present.
The present had been split similarly involving the two contending recipients.
Regarding the present to renovate the hallway, the hallway had been easily identifiable, but there clearly was no charitable function connected to the present. The data revealed that the hallway had been principally utilized as a location for Ukrainian social tasks or even for tasks associated with the local Ukrainian Catholic college. The Attorney-General presented that the gift had been an intention present and that using the proof showing this kind of connection that is close other charitable tasks, specially with all the college, the gift arrived to the course of gift ideas when it comes to upkeep of school structures that are frequently charitable. Their Honour consented.
Implications with this instance
This situation ended up being a typical example of just how to not ever make a might. The deceased never ever had and married no kiddies. The will ended up being split into 100 components, of which 65 had been designated for charity. Nonetheless, the deceased failed to determine the charitable recipients properly (except 1, 2 and 9), and every must be determined cy-pres by https://brightbrides.net/review/oasis-active-review mediation, or by the upshot of this situation (where two gift ideas had been doubtful as with their charitable nature). More over, there had already been a grouped family supply application which led to 10 components being awarded to a family group supply receiver. Costs implications had been obvious, and the costs issue to his Honour dealt at the conclusion of the situation. Costs regarding the plaintiff (the executor) and also the Attorney-General were granted out from the property. Charges for the charities had been deducted from their circulation.