Application by Evans

[2016] NSWSC 1687

Supreme Court

New South Wales

Medium Neutral Citation:	Application by Evans [2016] NSWSC 1687
Hearing dates:	22 November 2016
Decision date:	22 November 2016
Jurisdiction:	Equity
Before:	Stevenson J
Decision:	Trustee justified in concluding that deceased intended to revoke her bequest to the Rotary Club of Kampala and intended by her reference to "Newcastle Rotary District 967" to refer to that entity or its successors; now Rotary International District 9670 Incorporated.  Trustee justified in proceeding upon the basis that the deceased's entire estate passes to Rotary International District 9670 Incorporated to establish a fund in the name of the deceased to be used for the purpose of service in the community within the geographical boundaries of the Newcastle district, such service being confined to activities which are charitable in nature.
Catchwords:	TRUST AND TRUSTEES – application for advice – where testatrix made informal changes to her will by deleting a clause and adding a manuscript provision – where that informal will admitted to probate – whether trustee justified in concluding that testatrix intended to revoke deleted bequest and that remaining bequest be paid to current entity conducting the nominated activity
Legislation Cited:	Associations Incorporation Act 1984 (NSW) Associations Incorporation Act 2009 (NSW) Succession Act 2006 (NSW) Trustee Act 1925 (NSW)
Category:	Principal judgment
Parties:	Peter James Evans (Plaintiff)
Representation:	Counsel: B Townsend (Plaintiff)   Solicitors: Peter Evans & Associates (Plaintiff)
File Number(s):	SC 2016/280280

EX TEMPORE Judgment

1. Margaret Roseland Illukol died on 15 February 2015.

2. She left an estate valued at a little under $1 million.

3. She made a will on 22 May 1992 in which she divided her estate into two equal shares as follows:

“As to one share for the Rotary Club of Kampala in the country of Uganda for use for the purpose of service in the community of Kampala as the Rotary Club may decide and the receipt of the President for the time being of the said Rotary Club shall be a full and sufficient discharge to my Trustees.

As to one share for Newcastle Rotary District 967 for the purpose of service in District 967 as the District may decide at its District Conference and the receipt of the Governor for the time being of the said Rotary District shall be a full and sufficient discharge to my Trustees.”

4. On 15 November 2002, Ms Illukol informally altered that will by deleting one of the two named executors.

5. On 10 March 2005, Ms Illukol again informally amended the document by deleting the gift to the Rotary Club of Kampala and writing "[e]stablish a fund in my name hopefully ongoing one".

6. Thus, at the date of her death page one of the will was in the form annexed to these reasons [Will (57.0 KB, pdf)].

7. That document was admitted to probate on 7 January 2016 under s 8 of the Succession Act 2006 (NSW).

8. The executor, Mr Evans, seeks advice under s 63 of the Trustee Act 1925 (NSW) as to how he would be justified in distributing the estate.

9. I think it clear that the deceased's intention in striking through the paragraph which formerly provided a bequest to the Rotary Club of Kampala was to revoke that bequest.

10. It is not entirely clear whether the deceased intended her instructions to "[e]stablish a fund in my name hopefully ongoing one" to be in lieu of the bequest to the Rotary Club of Kampala or rather somehow to augment her request to the Newcastle Rotary District 967.

11. I have concluded that the latter view is to be preferred and that the deceased intended, by her manuscript changes to the will of 10 March 2005, to revoke her instruction that her estate be divided in two and intended to express an intention, albeit relatively informally, to establish a fund for the benefit of the remaining named entity.

12. At the date of the will, there did not exist an entity known in terms as "Newcastle Rotary District 967".

13. Some time prior to 1981, up to 30 June 1991, there was an unincorporated association known as "Rotary District 967" which district included Newcastle.

14. With effect from 1 July 1981, "Rotary District 967" changed its name to "Rotary District 9670" but remained operative in the Newcastle area.

15. On 10 March 2005, "Rotary District 9670" changed its name to "Rotary International District 9670".

16. It will be observed that that change took place on the same day as the deceased made her second manuscript change to her will.

17. On 10 April 2006, "Rotary International District 9670" ceased to operate and its functions were assumed by Rotary International District 9670 Incorporated; an entity incorporated under the Associations Incorporation Act1984 (NSW).

18. By reason of the transitional provision in the Associations Incorporations Act 2009 (NSW) that entity is taken to be also incorporated under the current Act. Schedule 2 r 2(1) makes clear that references in the documents such as the will to an entity incorporated under that legislation is taken to include references to its predecessor organisations.

19. I am satisfied that Mr Evans would be justified in concluding that, first, Ms Illukol intended to revoke her bequest to the Rotary Club of Kampala, and, second, intended by her reference to "Newcastle Rotary District 967" to refer to that entity or its successors; now Rotary International District 9670 Incorporated.

20. In my opinion, the trustee would be justified in proceeding upon the basis that, on the proper construction of the will, the deceased's entire estate passes to Rotary International District 9670 Incorporated to establish a fund in the name of the deceased to be used for the purpose of service in the community within the geographical boundaries of the Newcastle district, such service being confined to activities which are charitable in nature.

21. I invite Mr Townsend, who appeared for Mr Evans, to bring in short minutes to give effect to these reasons.

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Decision last updated: 29 November 2016