Application of Marie-Louise Hendrika Van Campen-Beekman

[2007] NSWSC 916

CITATION:	Application of Marie-Louise Hendrika Van Campen-Beekman [2007] NSWSC 916
HEARING DATE(S):	14/08/07
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	14 August 2007
DECISION:	Declaration made that executrix may treat gift in clause 3 of the will of her late brother as invalid.
CATCHWORDS:	ASSOCIATIONS & CLUBS [6]- Gift by will to non-charitable unincorporated association- Membership and management structure uncertain- Gift fails. CHARITIES [45]- Non-charitable purposes- Gift of house by will to "Free Papua Movement"- Aims of movement political- Gift fails as a charitable gift. SUCCESSION [166]- Wills- Gift to non-charitable unincorporated body- Body's membership and internal structure uncertain- Gift fails.
LEGISLATION CITED:	Charitable Trusts Act 1993, s 23 Civil Procedure Act 2005, ss 56, 60 Trustee Act 1925, s 63
CASES CITED:	Bacon v Pianata (1966) 114 CLR 634 Radmanovich v Nedeljkovic (2001) 52 NSWLR 641 Re Denley's Trust Deed [1969] 1 Ch 373
PARTIES:	Marie-Louise Hendrika Van Campen-Beekman (P)
FILE NUMBER(S):	SC 3464/07
COUNSEL:	R D Wilson (P)
SOLICITORS:	Ellis & Baxter (P)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 14 August 2007

3464/07 – APPLICATION OF MARIE-LOUISE HENDRIKA VAN CAMPEN-BEEKMAN

JUDGMENT

1 HIS HONOUR: I am treating this as an application under s 63 of the Trustee Act 1925 to deal with a question that arises out of the will of the late Peter Bernard Maria Beekman who died on 17 December 2005. The deceased made his last will and testament on 27 July 2005, probate of which was granted to the plaintiff on 30 May 2006.

2 The proceedings commenced, as was quite proper, for a declaration as to what was the true construction of the will. The estate is only some $350,000 and there is difficulty in identifying who are the proper contradictors and who are the proper parties.

3 Although, under s 63, the court does not normally construe a will, when one has a small estate the court has got to be very careful to ensure that the costs of proceeding what might be called “strictly according to Hoyle” do not become too great. The court must apply s 56 of the Civil Procedure Act 2005 to deal with the real point of the litigation justly, quickly and cheaply and must also bear in mind s 60, which says:

“In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.”

4 Accordingly, as it is very difficult to have the matter fully argued and to notify the right parties, and as the answer is fairly obvious, it seems to me that, despite the usual practice, one should treat this as if it were an application under s 63. Once the direction has been given to the executrix then she should be able to advertise the advice she has been given and, if there is anybody out there who wishes to challenge it, that person can have an opportunity to challenge it without compelling people to come in and spend costs and perhaps exhaust most of the funds.

5 The will provides in clause 3 as follows:

“I GIVE my house owned by me at the date of my death to the Free Papua Movement (OPM) for its general purposes.”

6 It is axiomatic that a gift to an unincorporated body which is not a charity will usually fail for one of a number of reasons, the principal one being that there is no beneficiary named and trusts must be in favour of beneficiaries unless they are charitable; see eg Bacon v Pianta (1966) 114 CLR 634 and Radmanovich v Nedeljkovic (2001) 52 NSWLR 641, 662-5. That is an over-simplification, but that is the general rule.

7 The Free Papua Movement is described in the free encyclopaedia, Wikipedia, as being known as OPM, the Indonesian being “Organisasi Papua Merdeka”, and is described as a separatist organisation seeking independence for Western New Guinea from Indonesia. The exact makeup of the movement is quite unclear. Wikipedia says that the internal organisation of OPM is difficult to determine. It had a supreme commander and at one stage had nine more or less independent commands, but whether it has members and what is its structure is completely unknown for fairly obvious reasons.

8 Evidence would not normally be accepted in this form, but in an application under s 63 the court looks at the material which the trustee has and forms its opinion on that material.

9 In light of the available evidence, it is impossible to employ one of the "escape routes" that the court can often call in aid to save gifts to unincorporated associations such as finding that the members of the organisation take personally subject to their contract to use that personal gift for the purposes of the association; see Re Denley’s Trust Deed [1969] 1 Ch 373. (The majority view is that that case was wrongly decided but, even if it is correct, that escape route is not available in this case).

10 The gift cannot be charitable for two main reasons. The first is that the main aim of the Free Papua Movement is to attempt to remove West Papua or Irian Jaya from Indonesian control. This is a political purpose and political purposes are rarely charitable. Secondly, even if its aims were charitable, the words "for its general purposes" may very well mean that unless one could apply s 23 of the Charitable Trusts Act 1993, then the gift would fail because a non-charitable purpose would have been mixed in with the charitable purposes.

11 I have read the advice Mr R D Wilson of counsel gave to the executrix and I respectfully agree with everything he says in that opinion and agree that it is almost unarguable to suggest anything other than that this gift fails as being a gift to a non-charitable purpose which cannot be saved by any of the exceptions.

12 Accordingly, I advise the trustee by order that she would be justified in treating the gift in clause 3 of the will of the late Peter Bernard Maria Beekman as invalid and that the testator's house forms part of the residue of the estate. However, before distribution she should advertise that she has obtained this advice in The Australian newspaper, in a newspaper circulating generally in Papua New Guinea, if there be one, otherwise one which is circulating in Port Moresby, and, likewise, in a newspaper that is circulating widely in Irian Jaya.

13 The costs are to come out of the estate on the trustee basis. The formal order I will make is that the matter will stand over for short minutes to be brought in on 11 September 2007 at 9.30am

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