Kostka v The Ukrainian Council of brand new Southern Wales Incorporated 2013 NSWSC 222 (Supreme Court of brand new Southern Wales, Young AJ, 26 March 2013)
This instance construction that is concerned of might of Taras Bodlak (the deceased), who passed away on 2 January 2010, aged 95. The deceased left nine gift suggestions in 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 Women Association in Lidcombe: 5%.
- Renovation of Ukrainian Hall in Lidcombe NSW: 5%.
- Ukrainian Catholic Church in Canberra: 5 per cent.
Problems arose utilizing the interpretation among these gifts. Furthermore, there clearly was no setting up of every trusts into the might, or any specification of purposes, but rather outright gift ideas to organizations, 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 might? If therefore, that human human human body provides and no further enquiry is made.
- If you don’t, the court can receive proof of 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 situation, there have been no figures or organisations which exactly matched presents 3 to 8 in the list into the might. This required a solution that is cy-pres. Which means that where a testator discloses a broad intent that is charitable maybe maybe perhaps not a particular intention to profit the known as organization), nevertheless the description associated with beneficiaries is uncertain, the court can authorise a distribution amongst bodies whose names are near the description employed by the testator in their will, so long as the Attorney-General (in the role as protector of charities) consents. The events have been to mediation as well as the Attorney-General had consented into the mediated plans made.
From 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 in ways in a way that there was clear advantage towards the community that is ukrainian. Although Lidcombe is specified, it isn’t unusual for sets of individuals arriving at Australia from European countries or Asia to cluster together in specific localities, whoever impact however spreads for the continuing State for the country. We therefore don’t see this guide as being a barrier up to a discovering that the gift suggestions may generally benefit the community. Its quite clear that every counsel and lawyers consider that, using the exception that is possible of present in paragraph 7 towards the Ukrainian ladies Association in Lidcombe and therefore respecting the hallway in paragraph 8, most of the gift suggestions in 1 to 9 are charitable as that term is recognized in Australian law. I really do not require to worry that a few of the figures or the majority of the bodies seem to be unincorporated associations once the proof that has been managed when you look at the mediation shows that either you can find corporations or trustees or any other factors why there isn’t any problem within the association that is unincorporated designated.
Consequently, there clearly was a basic charitable intent shown in the might. The cy-pres recipients regarding the charitable gift suggestions at 3 to 6 associated with list that is deceased’s been determined at mediation, and had been incorporated into their Honour’s requests.
But had been the gift ideas into the women’s association and also the Ukrainian hallway charitable? For the to begin these gifts that are possible 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 charitable purposes as enunciated in Pemsel’s situation. Did the present belong to one of these brilliant? The actual only real possible one had been the 4th mind of charity, ‘other purposes useful to the community’.
An organization that is solely for social or leisure purposes may not be charitable, however as their Honour noted ‘the trend of authority seems to be going in direction of upholding such gift ideas where there are lots of 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 big variety of donations to Ukrainian based figures in Australia and offshore including contributions to your Ukrainian School at Lidcombe to help needy young ones in Sokal Ukraine, to send clothes to your bad of Ukraine, and also to subscribe to the veterans of this Ukrainian Partisan Army residing in the Ukraine that do perhaps not get a veteran’s retirement and they are in bad circumstances. The branch also endeavoured to offer help for elderly past users.
Their Honour reviewed the case that is relevant, 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. The court held that the purposes of the organisation had to be assessed holistically, in the light of the organisation’s formation and history in that case. In this respect, His Honour said (at 30):
It could appear to me personally that in the ambit of what exactly is being considered in developing that list would consist of a team of females fulfilling alongside the typical goal of advertising culture that is ukrainian trying to look after persons of Ukrainian beginning in needy circumstances.
He determined that (at 44–45):
It should be recognized that there’s no decision into the typical legislation globe which goes quite in terms of the thing I need to determine when you look at the current situation. Further, I noted 10 years ago in Radmanovich v Nedeljovic that this looked like a gap that is unwholesome charity legislation. This indicates in my experience now, nonetheless, that that gap is slowly being paid off. We now start thinking about, into the light associated with product We have evaluated, that in twenty-first century New Southern Wales a trust in preference of a team of ladies of a certain ethnicity, who seek a lot more than simple relaxation and social sexual intercourse, but additionally to assist folks of the same cultural team and distribute that culture to help the community purposes of a team of Australians of a particular cultural beginning, is just a charitable present.
The present ended up being split similarly involving 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. Evidence revealed that the hallway had been principally used being a place for Ukrainian social tasks or even for tasks associated with the local Ukrainian Catholic college. The Attorney-General presented that the present had been an objective present and therefore using the proof showing this kind of connection that is close other charitable activities, specially with all the college, the present arrived to the class of gift ideas for the upkeep of college structures that are often charitable. His Honour consented.
Implications for this instance
This situation ended up being a good example of exactly exactly just how not to ever create a might. The deceased never ever married and had no kiddies. The will ended up being divided in to 100 components, of which 65 were designated for charity. But, the deceased would not determine the charitable recipients precisely (except 1, 2 and 9), and every must be determined cy-pres by mediation, or because of the results of this situation (where two gift suggestions had been doubtful as for their charitable nature). More over, there had already been a grouped household supply application which led to 10 components being granted to a household supply receiver. Expenses implications had been apparent, and their Honour dealt with all the expenses problem at the conclusion Look At This of the case. Expenses regarding the plaintiff (the executor) and also the Attorney-General were granted from the property. Charges for the charities had been deducted from their circulation.