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), whom died on 2 January 2010, aged 95. The deceased left nine gift ideas inside 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 Governmental Prisoners in 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 aided by the interpretation of the gift suggestions. Furthermore, there clearly was no setting up of any trusts into the might, or any specification of purposes, but gifts that are rather outright organizations, including some which were unincorporated.
Their Honour stated that the basic principles were well-established (at 3):
- Will there be any one human body which exactly 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 receive proof of surrounding circumstances however direct declarations of intention to learn who was simply intended.
- If there are two main or even more systems which precisely answer the description, then your court can look not merely at surrounding circumstances but additionally direct declarations of intention.
In this full situation, there have been no figures or organisations which exactly matched presents 3 to 8 in the list within the might. This called for a solution that is cy-pres. Which means that in instances where a testator discloses a broad charitable intent ( perhaps maybe not a particular intention to profit the called organization), nevertheless the description associated with the beneficiaries is ambiguous, the court can authorise a circulation amongst bodies whose names are near the description employed by the testator in their will, so long as the Attorney-General (inside the role as protector of charities) consents. The events have been to mediation together with Attorney-General had consented to your arrangements that are mediated.
Regarding the problem of basic charitable intent, 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 in ways so that there clearly was clear advantage towards the Ukrainian handy link 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 specific localities, whoever impact however spreads through the State for the country. I thus try not to see this guide as being a barrier up to a choosing that the gift ideas may gain the city generally speaking. It really is quite clear that every counsel and lawyers consider that, utilizing the feasible exclusion associated with gift in paragraph 7 into the Ukrainian ladies Association in Lidcombe and that respecting the hallway in paragraph 8, all of the gift ideas in 1 to 9 are charitable as that term is recognized in Australian law. I actually do not want to worry that a few of the figures or almost all of the bodies be seemingly unincorporated associations once the proof that was dealt with within the mediation shows that either you can find corporations or trustees or other reasoned explanations why there’s absolutely no issue within the unincorporated relationship being designated.
Consequently, there clearly was an over-all charitable intent shown in the might. The cy-pres recipients for the charitable gift suggestions at 3 to 6 associated with the deceased’s list had been determined at mediation, and had been incorporated into their Honour’s purchases.
But had been the presents to your women’s relationship as well as the Ukrainian hallway charitable? For the to begin these feasible gift ideas, 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 situation. Did the present belong to one of these brilliant? Really the only one that is possible the 4th mind of charity, ‘other purposes advantageous to the community’.
An organization this is certainly solely for social or leisure purposes can not be charitable, however as their Honour noted ‘the trend of authority appears to be going in direction of upholding such gift ideas where there are several features’ that are additional. 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 to your Ukrainian School at Lidcombe to help needy young ones in Sokal Ukraine, to deliver clothes towards the bad of Ukraine, and also to subscribe to the veterans associated with Ukrainian Partisan Army surviving in the Ukraine that do maybe perhaps not get a veteran’s retirement consequently they are in bad circumstances. The branch additionally endeavoured to supply help for elderly past users.
Their Honour reviewed the case that is relevant, of which there is small, and people that there have been contained ‘very few good analogies’ (at 34). These situations included Victorian Women Lawyers Association Inc v Federal Commissioner of Taxation 2008 FCA 983. If so, the court held that the purposes of this organisation needed to be examined holistically, within the light of the 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 exactly is being considered in developing that list would add a team of females meeting with the typical goal of advertising culture that is ukrainian trying to look after people of Ukrainian beginning in needy circumstances.
He determined that (at 44–45):
It should be recognized there is no choice within the typical legislation globe which goes quite in terms of the things I need to determine within the case that is present. Further, I noted a decade ago in Radmanovich v Nedeljovic that this appeared as if an unwholesome space in charity law. It appears if you ask me now, nevertheless, that that gap is slowly being reduced. We now start thinking about, into the light of this product We have evaluated, that in twenty-first century New Southern Wales a trust in preference of a team of ladies of a specific ethnicity, who seek significantly more than simple relaxation and social sex, but in addition to aid individuals 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 gift 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 indicated that the hallway had been principally utilized as a place for Ukrainian social tasks or even for tasks related to the Ukrainian Catholic that is local school. The Attorney-General submitted that the present ended up being an intention present and therefore utilizing the proof showing this kind of close reference to other charitable tasks, specially aided by the college, the present arrived to the course of gift suggestions when it comes to upkeep of college structures that are often charitable. Their Honour agreed.
Implications for this instance
This instance ended up being a typical example of exactly how not to ever make a might. The deceased never ever had and married no kiddies. The will ended up being divided in to 100 components, of which 65 were designated for charity. But, the dead failed to determine the charitable recipients precisely (except 1, 2 and 9), and every must be decided cy-pres by mediation, or by the results of this situation (where two gift suggestions had been doubtful as for their nature that is charitable). Furthermore, there had been a grouped family members 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 by the end of the situation. Expenses associated with plaintiff (the executor) as well as the Attorney-General were granted out from the estate. Prices for the charities had been deducted from their circulation.