Kostka v The Ukrainian Council of brand new Southern Wales Incorporated 2013 NSWSC 222 (Supreme Court of the latest Southern Wales, Young AJ, 26 March 2013)
This instance concerned construction associated with the will of Taras Bodlak (the dead), whom passed away on 2 January 2010, aged 95. The deceased left nine gift suggestions inside the 1996 will, the following:
- 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 per cent.
Problems arose because of the interpretation of the gift suggestions. Furthermore, there clearly was no setting up of every trusts into the will, or any specification of purposes, but rather outright gift ideas to institutions, including some which were unincorporated.
Their Honour stated that the principles that are basic well-established (at 3):
- Can there be any one human body which precisely fits the description into the will? If therefore, that human body provides and no further enquiry is made.
- If you don’t, the court can get proof surrounding circumstances yet not direct declarations of intention to learn who had been meant.
- Then the court can look not only at surrounding circumstances but also direct declarations of intention if there are two or more bodies which exactly answer the description.
In this full instance, there have been no systems or organisations which exactly matched gift suggestions 3 to 8 regarding the list when you look at the might. This required a cy-pres solution. Which means where a testator discloses a broad charitable intent ( perhaps not a certain intention to profit the known as organization), however the description associated with beneficiaries is uncertain, the court can authorise a circulation amongst bodies whose names are near the description utilized by the testator in their will, so long as the Attorney-General (inside the role as protector of charities) consents. The events was indeed to mediation as well as the Attorney-General had consented towards the arrangements that are mediated.
In the problem of basic intent that is charitable their Honour stated that (at 16–17):
The scheme with this will shows an intention to profit a number of teams with Ukrainian or church connections you might say in a way that there clearly was clear advantage towards the Ukrainian community. Although Lidcombe is specified, it is really not unusual for sets of individuals arriving at Australia from European countries or Asia to cluster together in particular localities, whoever impact however spreads through the State for the country. We therefore try not to see this guide as being a barrier up to a finding that the gift suggestions may gain the city generally speaking. It really is quite clear that every counsel and lawyers consider that, aided by the feasible exclusion regarding the present in paragraph 7 towards the Ukrainian ladies Association in Lidcombe and therefore respecting the hallway in paragraph 8, all of the gift suggestions in 1 to 9 are charitable as that term is recognized in Australian legislation. I really do not want to worry that a few of the systems or a lot of the bodies be seemingly unincorporated associations while the proof that has been handled into the mediation shows that either you will find corporations or trustees or other reasoned explanations why there’s absolutely no issue within the association that is unincorporated designated.
Therefore, there is a basic intent that is charitable in the will. The cy-pres recipients regarding the charitable presents at 3 to 6 for the deceased’s list had been determined at mediation, and had been contained in their Honour’s purchases.
But had been the presents towards the women’s relationship together with Ukrainian hallway charitable? When it comes to firstly 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. Their Honour considered the four classic purposes that are charitable enunciated in Pemsel’s instance. Did the gift belong to one of these brilliant? The only real one that is possible the 4th mind of charity, ‘other purposes good for the community’.
An organization this is certainly solely for social or leisure purposes can not be charitable, however as His Honour noted ‘the trend of authority is apparently going in direction of upholding such presents where there are numerous extra features’. The Ukrainian Women’s Association in Australia, Lidcombe branch had objects which His Honour felt had ‘a charitable flavour’ (at 26) in this case. The Lidcombe branch produced series that is large of to Ukrainian based figures in Australia and offshore including contributions towards the Ukrainian School at Lidcombe to aid needy children in Sokal Ukraine, to deliver clothes into the bad of Ukraine, and also to subscribe to the veterans associated with Ukrainian Partisan Army located in the christian cupid sign up Ukraine that do perhaps perhaps maybe not be given a veteran’s retirement and so are in bad circumstances. The branch additionally endeavoured to offer help for elderly past users.
Their Honour reviewed the appropriate situation legislation, of which there is small, and the ones 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 so, the court held that the purposes associated with the organisation needed to be evaluated holistically, into the light associated with 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 typical goal of marketing culture that is ukrainian seeking to take care of people of Ukrainian beginning in needy circumstances.
He concluded that (at 44–45):
It should be recognized there is no choice when you look at the typical legislation globe which goes quite so far as the thing I need certainly to determine in the current instance. Further, we noted 10 years ago in Radmanovich v Nedeljovic that this seemed to be an unwholesome space in charity legislation. It appears for me now, nonetheless, that that space is slowly being paid down. We now start thinking about, when you look at the light associated with the product We have actually evaluated, that in twenty-first century brand brand New Southern Wales a trust in preference of a small grouping of females of a certain ethnicity, who seek significantly more than simple entertainment and social sexual intercourse, but additionally to help folks of the exact same cultural team and distribute that culture to help the community purposes of a small grouping of Australians of a particular cultural beginning, is a gift that is charitable.
The present ended up being split similarly amongst the two contending recipients.
The hall was easily identifiable, but there was no charitable purpose attached to the gift as to the gift to renovate the hall. The data indicated that the hallway had been principally utilized being a location for Ukrainian social tasks or even for tasks linked to the Ukrainian Catholic that is local college. The Attorney-General presented that the present ended up being an objective present and therefore using the proof showing this kind of close reference to other charitable tasks, particularly with all the college, the gift arrived to the course of gift suggestions when it comes to upkeep of college structures that are often charitable. Their Honour consented.
Implications of the instance
This instance ended up being a good example of just exactly how to not create a might. The deceased never ever hitched and had no kids. The will was divided in to 100 components, of which 65 had been designated for charity. Nonetheless, the dead would not determine the charitable recipients properly (except 1, 2 and 9), and every needed to be determined cy-pres by mediation, or by the results of this instance (where two gift ideas had been doubtful as with their nature that is charitable). Furthermore, there had already been family members supply application which triggered 10 components being granted to a household provision receiver. Expenses implications were apparent, and His Honour dealt with all the expenses problem by the end of the situation. Expenses regarding the plaintiff (the executor) as well as the Attorney-General were granted out from the property. Charges for the charities had been deducted from their circulation.