Goldwyn v Mazal - [2003] NSWSC 427

CITATION: GOLDWYN v. MAZAL [2003] NSWSC 427

HEARING DATE(S): 15 & 16/05/03

JUDGMENT DATE:
16 May 2003

JURISDICTION:
Equity

JUDGMENT OF: Bryson J at 1

DECISION: Charity valid - fund payable to trustee in Israel - see [47]

CATCHWORDS: CHARITIES - Charitable purposes generally - trust to be performed in foreign country - gift in will "to pay the net proceeds ... to my niece DM of Jerusalem, Israel, for the purpose of setting up a trust recognized by Israeli law for the neurologically impaired and the communicatively handicapped" - on the evidence, if the money were paid to the niece the purpose was enforceable in Israeli law - no purpose beneficial to public of NSW was necessary - executor was entitled to rely on receipt by niece.

LEGISLATION CITED: Trustee Act 1925
Wills, Probate and Administration Act 1898

CASES CITED: Camille and Henry Dreyfus Foundation v. Inland Revenue [1954] Ch 672
Lander & Anor v. Whitbread (1982) 2 NSWLR 530
McGrath & Anor v. Cohen & Anor [1978] 1 NSWLR 621
Re Lowin, Perpetual Trustee Co Ltd v Robins [1965] NSWR 1624, [1967] 2 NSWR 140

PARTIES :
Phillip Goldwyn - Plaintiff
Dianne Mazal - First Defendant
Balram Puri, Mangat Ram Kundra, Mohan K Thadani, Chunilal Nathwani as trustees of the Sri Satya Sai U.K. Trust - Second Defendants

FILE NUMBER(S): SC 3671/00

COUNSEL: M.S. Willmott - Plaintiff
S. Morris (s) - 1st Defendant

SOLICITORS: Kathleen T. Wilcox - Plaintiff
Piper Alderman Lawyers - 1st Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J

FRIDAY 16 MAY 2003

3671/00 PHILLIP GOLDWYN v. DIANNE MAZAL – ESTATE OF FREDA KAGAN & 4 ORS

JUDGMENT

1 HIS HONOUR: Freda Kagan, late of London in the United Kingdom, retired secretary, died on 26 October 1996 and the plaintiff, Mr Goldwyn, obtained from this Court on 12 January 1998 probate of her last will dated 24 August 1996 and first and only codicil dated 14 October 1996.

2 The plaintiff by the summons issued on 22 August 2000, and now by amended summons, seeks a determination of some questions arising under the will.

3 One question relates to whether the plaintiff, in the events that have happened, is at liberty to pay moneys disposed of under cl 2 of the will and also cl 4, which is added to the will by the codicil, to the first defendant, Dianne Mazal.

4 The second claim seeks to establish the incidence on gifts made by the will of costs associated with obtaining the grant of probate and costs of administration.

5 The operative parts of the will are in these terms:

I give devise and bequeath the whole of my property to my executor upon the following trusts:-

To convert into money my commercial bill in the ANZ Bank Sydney due to mature on 6 September 1996, my deposit in the Challenge Bank Elizabeth Street, Melbourne account number 473 100 080 019 due to mature on 30 September 1996 and my…

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: [2003] NSWSC 427
Decision Date: 16 May 2003

CaseChat Overview and Summary

The High Court was asked to determine whether a bequest to a niece, intended to establish a trust in Israel for neurologically and communicatively impaired individuals, was valid under Australian law. The testator, in their will, left a sum to their niece with the specific instruction that the money be used to establish a trust in Israel, recognised by Israeli law, for the benefit of those with neurological and communicative impairments. The primary legal issue was whether the bequest could be enforced under Australian law, given that the intended purpose of the trust was to be performed in Israel.

The Court considered the nature of charitable trusts and whether the purpose of the trust needed to benefit the public in New South Wales. The Court held that the purpose was enforceable under Israeli law and, as such, there was no requirement for the purpose to benefit the public in New South Wales. The Court further reasoned that the executor of the will was entitled to rely on the niece's receipt of the funds, as the purpose was enforceable under Israeli law, and thus, the bequest was valid under Australian law.

The Court found that the executor was entitled to distribute the funds to the niece for the establishment of the trust in Israel, as the purpose was enforceable under Israeli law. The decision affirmed that a trust purpose does not need to benefit the public of New South Wales to be valid under Australian law, provided it is enforceable under the law of the country where it is to be performed.

Orders