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Estate Polykarpou; re a Charity

Estate Polykarpou; re a Charity

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Supreme Court

New South Wales

Medium Neutral Citation: Estate Polykarpou; Re a charity [2016] NSWSC 409
Hearing dates: 14 March 2016
Date of orders: 22 July 2016
Decision date: 22 July 2016
Jurisdiction: Equity - Probate List
Before: Lindsay J
Decision:
(1)   DECLARE that, on the true construction of the will of Euphemia (“Mia”) Polykarpou dated 22 March 2014, and in the events which have happened, the gift of property in clause 4.2 of the will constitutes a valid charitable trust.

(2)   DECLARE that, notwithstanding dissolution of the corporation identified in clause 4.2 as the recipient of trust property, the property the subject of the trust is dedicated to charity.

(3)   ORDER that the trust property be applied cy pres, and that a scheme be settled for that purpose.

(4) ORDER (pursuant to the Charitable Trusts Act, section 13(2)) that the trust be referred to the Attorney General for the Attorney to establish such a scheme.
(5)   RESERVE to the Attorney General, the trustee of the charitable trust and such (if any) other persons who may be interested in due administration of the trust, liberty, at their own risk as to costs, to apply for directions in settlement of a cy pres scheme.
Catchwords: CHARITIES – Charitable gifts and trusts – When applied cy-pres – Where general charitable intention – Gift to specifically named charity which ceased to exist before death of testatrix – Analysis of Court’s jurisdiction over charitable trusts and gifts - Charitable Trusts Act as legislative framework for administrative arrangements, not displace Court’s general jurisdiction
SUCCESSION - Construction and effect of testamentary dispositions - Construction of gift to dissolved corporation
Legislation Cited: Australian Constitution Act 1842 (Imp)
Australian Courts Act 1828 (Imp)
Charities Procedure Act 1812 (Eng)
Charitable Trusts Act 1993 NSW
Civil Procedure Act 2005 NSW
Civil Procedure Rules, 2005 NSW
Imperial Acts Application Act 1969 NSW
Interpretation Act 1987 NSW
New South Wales Act, 1823 (Imp)
Short Titles Act 1896 (Imp)
Sir Samuel Romilly’s Act 1812 (Eng)
Supreme Court Act 1970 NSW)
Succession Act 2006 NSW
Uniform Civil Procedure Act 2005 NSW
Cases Cited: Allgood v Blake (1873) LR 8 Exch 160
Attorney General (NSW) v Fred Fulham [2002] NSWSC 629
Attorney General (NSW) v Perpetual Trustee Co Limited (1940) 63 CLR 209
Berry v International Committee of the Red Cross (WA Supreme Court, 24 November 1986) BC 8691001
Boyes v Cook (1880) 14 ChD 53
Commissioner of Stamp Duties (QLD) v Livingston [1965]AC 694
Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531
Cooper v Stuart (1889) 14 App Cas 286
Coorey v Coorey (NSW Supreme Court 22 February 1986, unreported)
Cram Foundation v Corbett-Jones and Anor [2006] NSWSC 495
Damberg v Damberg (2001) 52 NSWLR 492
Dobrijevic v Free Serbian Orthodox Church, Diocese for Australia and New Zealand Property Trust [2015] NSWSC 637
Fell v Fell (1922) 31 CLR 268
Goldwyn v Mazal [2003] NSWSC 427
Hadaway v Hadaway [1955] 1 WLR 16
Hatzantonis v Lawrence Cox [2003] in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWSC 409
Decision Date: 22 July 2016

CaseChat Overview and Summary

The case of Estate Polykarpou; re a Charity involved a dispute regarding the disposition of a charitable gift under a deceased's will. The testatrix, Mrs Polykarpou, left a legacy to a specific charity, which had ceased to exist prior to her death. The Court of Appeal of the Supreme Court of South Australia was tasked with determining the application of the gift and whether it should be applied cy-pres to a similar charity. The case raised questions regarding the jurisdiction of the Court over charitable trusts and gifts and the legislative framework provided by the Charitable Trusts Act.

The primary legal issue before the Court was whether the gift intended by the testatrix should be applied cy-pres to a similar charity due to the dissolution of the specified charity before her death. The Court also needed to consider the legislative framework provided by the Charitable Trusts Act and its impact on the Court's general jurisdiction over charitable trusts and gifts. Additionally, the Court needed to interpret the testatrix's intentions and determine whether the gift was intended to be charitable in nature.

In determining the outcome, the Court held that the jurisdiction of the Court over charitable trusts and gifts was not displaced by the Charitable Trusts Act, which provided the legislative framework for administrative arrangements. The Court found that the testatrix's general charitable intention was clear, and the gift should be applied cy-pres to a similar charity. The Court also held that the dissolution of the specified charity did not defeat the gift, and it should be applied to a charity with a similar purpose. The Court concluded that the testatrix's intention was to make a charitable gift, and the Court had the jurisdiction to apply the gift cy-pres to a similar charity.

The Court's final order was that the gift should be applied cy-pres to a charity with a similar purpose to the one specified in the testatrix's will. The Court found that the dissolution of the specified charity did not defeat the gift, and the Court had the jurisdiction to apply the gift cy-pres. The Court also held that the Charitable Trusts Act did not displace the Court's general jurisdiction over charitable trusts and gifts. The Court's decision provides guidance to practitioners on the interpretation of charitable gifts and trusts and the application of cy-pres in cases where the specified charity has ceased to exist.

Orders