KELLY MARIE MORGAN AS EXECUTOR OF THE ESTATE OF STUART IRVING MCLEISH - [2025] SASC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
KELLY MARIE MORGAN AS EXECUTOR OF THE ESTATE OF STUART IRVING MCLEISH
[2025] SASC 79
Judgment of the Honourable Justice Hughes
29 May 2025
SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - GENERALLY
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION - EFFECT OF CODICIL
SUCCESSION - INTESTACY AND DISTRIBUTION ON INTESTACY
CHARITIES - CHARITABLE GIFTS AND TRUSTS - VALIDITY AND PRACTICABILITY - INDEFINITE AND UNCERTAIN OBJECTS - IN GENERAL - GIFTS VOID FOR UNCERTAINTY
An executor applied for advice and directions from the Court in regard to a will that was later altered by a handwritten codicil. The codicil purported to provide a gift of twenty-five percent of the residuary estate “for the ducks, food seed or bread, at Belalie Creek”. The Court was required to determine:
1.Whether the gift “for the ducks, food seed or bread, at Belalie Creek” is a charitable gift or whether it is void; and

2. If the gift is void, to whom should the gift be distributed?
Held:
1.There is insufficient evidence before the Court that the natural and probable consequences of the gift would result in a benefit to the public. The gift is not for charitable purposes and fails at law. The gift passes on intestacy.
2.Pursuant to section 72G(1)(c) and section 72I(b) of the Administration and Probate Act 1919, the failed gift passes to the deceased’s two daughters in equal shares. No question of the gift vesting in the Crown arises under section 72G(1)(e).

Administration and Probate Act 1919 (SA) ss 64, 72G, 72K, 72I; Succession Act 2023; Trustee Act 1936 (SA) s 69B; Trustee Act (NSW) s 63(8)-(11); Wills Act 1936 (SA) s 8; Uniform Civil Rules 2020 r 232.2, referred to.
Armenian General Benevolent Union v Union Trustee Co of Australia Ltd (1952) 87 CLR 597; Burke v Public Trustee of South Australia [2022] SASCA 64; Hall v Carney (No 3) (2021) 139 SASR 63; In re Grove-Grady; Plowden v Lawrence (1929) Ch 557; In the Estate of Brine (Deceased) [2021] SASC 54; Kerin v Attorney-General (SA) [2019] SASC 103; Kytherian Association Of Queensland v Sklavos (1958) 101 CLR 56; Lempens v Reid & Ors (2009) 2 ASTLR 373; Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198; National Trustees Executors and Agency Co of Australasia Ltd v Attorney-General (Vic) [1978] VR 374; Re Magarey Farlam Lawyers Trust Accounts (No 2) [2006] SASC 382; Re Royal Society’s Charitable Trusts [1956] 1 Ch 87; Royal Society for the Prevention of Cruelty to Animals (NSW) v Benevolent Society of New South Wales (1960) 102 CLR 629; South Australian Employers' Chamber of Commerce & Industry Inc v Commissioner of State Taxation (2017) 106 ATR 305; The Commissioners for Special Purposes of The Income Tax v John Frederick Pemsel [1891] AC 531; University of Adelaide v Attorney-General (SA) [2018] SASC 82, considered.

KELLY MARIE MORGAN AS EXECUTOR OF THE ESTATE OF STUART IRVING MCLEISH
[2025] SASC 79
Civil - Application

HUGHES J: Jamestown is situated approximately 216 kilometres north of Adelaide in the Northern Areas Council. Belalie Creek runs through the township. Belalie Creek’s adjacent grass lawns and ornamental footbridge make it a picnic spot for locals and tourists. It is also frequented by ducks, which are described on the Visit Jamestown website as “friendly”.[1]
[1] ‘Belalie Creek’, Visit Jamestown (Web Page, May 2025) <>
On 9 December 2022, Stuart Irving McLeish (“the deceased”) died at Jamestown. At the time these proceedings were brought, the deceased’s estate had a value of $158,883.47.[2]
[2] FDN 10, Written submissions of the executor dated 18 December 2024, para [16].
The deceased left a will (“the Will”) executed on 18 November 2014. It was prepared with the assistance of solicitors.[3] The deceased appointed his solicitor, Kelly Morgan, as his executor. Mr McLeish was survived by two adult daughters, Ms Gail Hunter and Ms Karen McLeish.
[3] FDN 10, Written submissions of the executor dated 18 December 2024, para [9].
Clause 8 of the Will provided as follows:
My trustees hold my estate on trust:
(a) To sell, call in or convert into money any part of my estate and pay any and all death estate or succession duties, debts, legacies, funeral and testamentary expenses…
(b)To hold the rest and residue of my estate UPON TRUST in two (2) equal parts and distribute as follows:
a.     As to the first one (1) part to be divided into two (2) equal parts and distributed as follows:
i.As to one (1) part to my daughter GALE LESLEY TURNER provided she survives me …
ii.As to one (1) part to my daughter KAREN JEAN MCLEISH provided she survives me …
b.    As to the remaining one (1) part to be divided as follows:[4]
c.     As to seventy percent (70%) to THE FRED HOLLOWS FOUNDATION INTERNATIONAL PROGRAMS…; and
d.    As to the remaining thirty percent (30%) to SAVE THE CHILDREN…
[4]     Consistency with clause 8(b)a would have required clause 8(b)c to have been identified as clause 8(b)(i) and clause 8(b)d to have been identified as clause 8(b)ii, but no ambiguity appears to have arisen as a result of the manner of clause numbering.
On 23 May 2022, the deceased prepared, apparently without legal assistance, an informal codicil to the Will. The informal codicil is a hand-written document. It says:
Changes to will…
…
Change. Part (c) to 50%. Remove Save the Children.
(b) Change this. Page 3 Will.
As to the remaining Part (1) 50% to the Fred Hollows Foundation.
To the remaining. 50% for the ducks, food seed or bread, at Belalie Creek and to see its application through by Miss Natalie Howard, of 12 Dutton Street Jamestown.
The informal codicil was not witnessed. The informal codicil did not meet the requirements of s 8 of the Wills Act 1936. On 18 December 2023, this Court ordered that the informal codicil was to be admitted to proof as a codicil (“the Codicil”) to the Will.[5]
[5] PROB-23-009048. The orders made were that ‘The Informal Document be admitted to proof as a Codicil to the last Will and testament of the Deceased made on 18 November 2014’ and ‘Probate of the Will and Codicil be granted to Kelly Marie Morgan the executor as described in the will, if entitled thereto’.
On 1 February 2024, probate was granted to the deceased’s executor, Ms Morgan.
On 1 November 2024, Ms Morgan made an application for advice, direction and/or a binding determination from this Court pursuant to s 69(4) of the Administration and Probate Act 1919 and/or to r 232.2 of the Uniform Civil Rules 2020 (UCR) as to the construction of the Will and the Codicil.[6] The application is expressed as follows:
[6] FDN 1, Originating Application.
1.Pursuant to section 69 of the Administration and Probate Act 1919 (SA) (“the Act”) and/or Rule 232.2 of the Uniform Civil Rules 2020 (“UCR”), Kelly Marie Morgan in her capacity as the executor (“the Executor”) of the estate of Stuart Irving McLeish late of 8 Dutton Street, Jamestown 5491 (“the Deceased”) who died on 9 December 2022, being in difficulty or doubt as to the administration of the Deceased’s estate, seeks the following advice, directions and binding determinations pursuant to s69(4) of the Act and/or the determination of the following questions pursuant to Uniform Civil Rules 232.2: -
1.1Whether, on the basis of the facts and circumstances disclosed in the affidavit of Kelly Marie Morgan sworn on 16 October 2024 and filed in support of this Originating Application (“the Executor’s Affidavit”), the Executor would be justified in administering the estate of the Deceased on the footing that the gift contained in Clause 8(d) of the Will as amended by the Codicil as it relates to the remaining 50% of the remaining one (1) equal part of the Deceased’s estate for “the ducks, food seed or bread, at Belalie Creek” (“the Special Gift”) fails at law and passes on an intestacy.
1.2In the event that this Honourable Court advises, directs and/or determines the Special Gift fails at law and passes on an intestacy, whether, on the basis of the facts and circumstances disclosed in the Executor’s Affidavit, the Executor would be justified in administering that portion of the Deceased’s estate comprising the Special Gift on the footing that it passes: -
1.2.1to the Crown by virtue of the operation of s72G and s72K of the Act; or
1.2.2in the alternative, equally to Gail Lesley Hunter and Karen Jean McLeish, daughters of the deceased, on the basis that a contrary intention appears from the circumstances of the case pursuant to s72K of the Act; or
1.2.3in some such other manner as determined by this Honourable Court.
2.That the costs of and incidental to this application of the Applicant be paid out of the estate of the Deceased.
3.Such further or other Orders as the Court thinks fit.
In essence, the questions posed to the Court are whether the gift “for the ducks, food seed or bread, at Belalie Creek” is a charitable gift, or whether it is void and, if the gift is void, to whom should the gift of 50% of one half of the residue be distributed?
For the purposes of this decision, the gift described above will be referred to as “the Belalie Creek Ducks Gift”.
The Court’s task
The Court has been asked to give advice and direction with respect to the construction of the Will, and in particular, the Belalie Creek Ducks Gift. The application was brought prior to 1 January 2025 and continues to be dealt with under s 69 of the repealed Administration and Probate Act 1919 in accordance with the transitional provisions of the Succession Act 2023 which is now in force.
As to the purpose of s 69, Doyle JA said in Burke v Public Trustee of South Australia at [362]:[7]
As the authorities have recognised, the provision of judicial advice to trustees serves both to protect a trustee who acts upon the advice provided, and to protect the interests of the trust. It achieves the latter both by ensuring that the interests of the trust do not become subordinated to the fear a trustee might otherwise have of personal liability, and by providing a summary style procedure to assist and guide a trustee (rather than forcing the trustee to rely upon the more cumbersome and expensive exercise of an action for general administration).
(Footnote omitted)
[7] [2022] SASCA 64, Doyle JA (Stanley J agreeing) (‘Burke v Public Trustee’).
Section 69 provides a mechanism for an executor or trustee to obtain judicial advice and thereby protect the executor or trustee from later complaint that he or she should have acted otherwise, and to protect the trustee from personal liability for the costs incurred in taking the course the subject to judicial advice.[8] The Court advises the trustee or executor by reference to what ought to be done in the best interests of the relevant estate or trust.[9]
[8] Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at [45], [64] (‘Macedonian Church case’).
[9] Burke v Public Trustee (n 7) [135], [482]; Hall v Carney (No 3) (2021) 139 SASR 63, [44] citing Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201 (Lord Oliver).
The most common type of application for advice and direction concerns the executors’ consideration of proposed litigation against a third party and whether it would be justified to expend some of the estate’s funds to resolve a dispute about its distribution. However, the Court may also provide a binding determination. Whether the power to exercise such jurisdiction is contained in s 69 of the Administration and Probate Act 1919 or resides only in the Court’s inherent jurisdiction was considered by Doyle JA in Burke v Public Trustee as follows: [10]
It would appear that the jurisdiction conferred upon the Court by s 69 of the Administration and Probate Act extends beyond this advisory jurisdiction and includes a supplementary jurisdiction to make binding determinations. Support for this supplementary jurisdiction may be found in the wording of s 69(4), which provides that a judge may, upon the hearing of an application under s 69 “make any order, declaratory or otherwise, that he sees fit as to the administration of the estate, or the construction of the will, deed, or document, which is the subject of the application”.
[10] Burke v Public Trustee (n 7) [366].
While there is early authority against the existence of this supplementary jurisdiction, more recent authority supports the potential for a flexible approach to the Court’s jurisdiction under s 69. As Debelle J explained in Re Magarey Farlam Lawyers Trust Accounts (No 2):[11]
Where the procedures of the court are sufficiently flexible to enable proceedings commenced as an application for directions to be changed in proceedings for determining substantive rights, the Court will on occasions make orders binding on the parties to those proceedings. The Court will do so where the parties consent and the Court has, where necessary, made representative orders for the purpose. It is a convenient course which avoids the need to commence further proceedings involving additional costs and delay. Nevertheless, it is important that the distinction between an application for directions and proceedings where it is intended to obtain orders which bind the parties to the proceedings is recognised and not blurred.
(Citations omitted)
[11] [2006] SASC 382.
This flexibility would be consistent with the recognition in the Macedonian Church case of the scope under s 63(8)-(11) of the Trustee Act 1925 (NSW) for a ‘compromise’ procedure to be adopted,[12] in appropriate cases, whereby affected persons may be given notice and an opportunity to be heard, with the result that the advice may become binding.
[12] Macedonian Church case (n 8) [65].
But regardless of whether s 69 of the Administration and Probate Act 1919 confers a supplementary binding jurisdiction upon the Court, there was no clear request that the primary judge in Burke v Public Trustee exercise that jurisdiction.[13] The terms of the Public Trustee’s application, and of the advice and directions ultimately given, make it clear that the proceedings were based firmly in the Court’s advisory jurisdiction.[14]
[13] Burke v Public Trustee (n 6) [373]-[377].
[14] Ibid.
Doyle JA’s observations may be understood as indicating that s 69 likely confers jurisdiction to make binding determinations, but it was not necessary in the circumstances of the case under consideration for the matter to be finally resolved.
Whilst the application under consideration in this decision is expressed in terms that seek either advice or a binding determination, it will be appropriate, for reasons expressed later, to provide advice rather than a binding determination.
I have had regard to the affidavits of Kelly Marie Morgan dated 16 October 2024,[15] and Harry Christopher Wall dated 16 December 2024.[16]
[15] FDN 3.
[16] FDN 9.
Issue 1 – characterising the gift
Relevant to the matters before the Court, Ms Morgan deposed that in her capacity as executor of the estate, she identified the possibility that the Belalie Creek Ducks Gift may be a charitable gift and sought the Attorney-General’s views. The Attorney-General is the guardian of the public interest in the administration and enforcement of charitable trusts on behalf of the Crown.[17]
[17] In the Estate of Brine (Deceased) [2021] SASC 54 at [16]; Kerin v Attorney-General (SA) [2019] SASC 103; University of Adelaide v Attorney-General (SA) [2018] SASC 82 at [4]; Re Royal Society’s Charitable Trusts [1956] 1 Ch 87 at 92–93; National Trustees Executors and Agency Co of Australasia Ltd v Attorney-General (Vic) [1978] VR 374, 375.
The Attorney-General wrote to Ms Morgan expressing his view that the Belalie Creek Ducks Gift did not appear to create a charitable trust because no benefit to the community was shown to result from it.[18]
[18] FDN 3, Exhibit KMM-5 to the affidavit of Kelly Marie Morgan affirmed 16 October 2024.
Ms Morgan also arranged for Ms Natalie Howard to be contacted about the Belalie Creek Ducks Gift. Ms Howard was a neighbour of the deceased and is the person through whom the deceased considered that the gift could be administered. Ms Howard provided contact details but has not advanced any position as to the validity of the gift.[19] She indicated to Ms Morgan’s advisers that she no longer lived in Jamestown.[20]
[19] FDN 3, Affidavit of Kelly Marie Morgan dated 16 October 2024 at [7], [13]-[14].
[20] FDN 3, Exhibit KMM-5 to the affidavit of Kelly Marie Morgan affirmed 16 October 2024.
Mr Wall, a solicitor assisting the executor, deposed that he contacted the administration of the Northern Areas Council to ascertain whether the Council had any policy in relation to the ducks that frequented Belalie Creek. The answer received was that although the ducks were “well loved by the community of Jamestown”, the Council did not encourage the feeding of ducks at Belalie Creek.[21]
[21] FDN 9, Affidavit of Harry Christopher Wall affirmed on 16 December 2024 at [4].
Both parties made written submissions to the Court to assist in the task of characterising the Belalie Creek Ducks Gift. Both submissions conclude that the gift fails at law, and that the gift passes on intestacy in equal shares to the deceased’s two daughters.
Is the Belalie Creek Ducks Gift a charitable gift?
Unlike a private trust, a charitable trust does not depend on certainty of object, provided that there is a clear indication of a general purpose of charity.[22] A charitable gift is one that is for the benefit of the public in a way that is recognised for the purposes of the law of charities. In The Commissioners for Special Purposes of The Income Tax v John Frederick Pemsel,[23] Lord Macnaghten grouped the purposes under the following four heads:[24]
[22] Armenian General Benevolent Union v Union Trustee Co of Australia Ltd (1952) 87 CLR 597, 604; Kytherian Association of Queensland v Sklavos (1958) 101 CLR 56, 66.
[23] [1891] AC 531 (‘Pemsel’).
[24] Ibid 583.
i.Relief of poverty;
ii.Advancement of education;
iii.Advancement of religion; and
iv.Other purposes beneficial to the community, not falling within the preceding heads.
If the Belalie Creek Ducks Gift is for a charitable purpose, it is because it comes within the fourth category. Blue J in South Australian Employers' Chamber of Commerce & Industry Inc v Commissioner of State Taxation said:[25]
The categories recognised as charitable in nature are not static or closed but dynamic over time as society and societal attitudes change. New categories can become recognised and old categories can become obsolete. If a purpose falls within a recognised category, no further enquiry is needed in respect of this element (although the issue whether the purpose is to provide a public benefit remains). If a purpose does not fall within a recognised category, it is necessary to have regard to first principles to determine whether the purpose is beneficial to the community and there should be an extension to recognise a new category by analogy to existing recognised categories.
(Footnotes omitted)
There are two foreseeable benefits arising from the Belalie Creek Ducks Gift. One is that it would benefit ducks, either generally or a particular group, and the other is that it would benefit the Belalie community, or visitors, or both.
[25] (2017) 106 ATR 305, [135] (‘SA Employers' Chamber of Commerce & Industry Inc’).

Gifts that benefit animals have been found to be capable of being charitable, but not because animals are part of the community. Rather, it has been held that humankind may benefit from acting in a humane, or preserving, way towards animals. In In re Grove-Grady; Plowden v Lawrence,[26] Lord Hanworth, Master of the Rolls said:[27]
… It seems clear that if the object be to enhance the condition of animals that are useful to mankind, or to secure good treatment for animals, whether those animals are useful to mankind or not … such objects are to be deemed charitable. Plainly, therefore, a very wide interpretation has been given to the term charity, where the objective is not only the condition of men, but also of animals; but it is not to be treated as inclusive of every purpose, which the whim or caprice of a testator may prescribe. …
[26] (1929) Ch 557.
[27] Ibid 570-571.
The need for the benefit to attach to humankind was reinforced by the High Court in Royal Society for the Prevention of Cruelty to Animals (NSW) v Benevolent Society of New South Wales.[28] In that case, a settlor of a trust purported to establish a bird sanctuary, with a gift of money and half an acre of land. The land had a bird bath on it and the settlor fed doves that visited the bird bath. The provisions of the gift included a requirement to feed the birds with grain three times each day.
[28] (1960) 102 CLR 629 (‘RSPCA v Benevolent Society’).
In declining to find that the gift created a charitable trust, Dixon J, with whom the other members of the High Court agreed, found that “directions to provide food and water for birds afford no sufficient ground for treating the trusts of the deed as charitable”.[29] Menzies J, in considering the purported trust in relation to the fourth category in Pemsel,[30] said:[31]
… to do no more than provide upon a suburban allotment water and some food for birds… seems to me to fall altogether outside the scope of a trust for the public benefit within the fourth category of [Pemsel] which requires not only a trust “to benefit animals” but also thereby to “elevate the moral character of men”…
[29] Ibid 644.
[30] (n 23) 583.
[31] Ibid 646-7.
The written submissions of the executor refer to Williams on Wills,[32] as to charitable objects that benefit animals as follows:[33]
A trust for the benefit of animals is charitable not upon the ground that it benefits the animals, but upon the ground that it produces some benefit to [human]kind, that is, it is calculated to develop the finer side of human nature. The objects of such a trust are not charitable even though for the benefit of animals if, on balance, the object is detrimental to the public benefit, as, for example, hindering medical research. On these principles trusts for the prevention of cruelty to animals have been upheld.
(Footnotes omitted)
[32] C H Sherrin, R F D Barlow and R A Wallington, Williams on Wills (Butterworths, 7^th ed, 1995).
[33] Ibid 904-905.
The Attorney-General’s position is that the gift has not been established to be a charitable gift because the gift is expressed in an ambiguous manner as to whether it refers ducks local to, and that frequently inhabit, Belalie Creek, or simply any duck that visits the area, such that the gift appears to be for the benefit of ducks generally.
The Court’s observation about this is that there is no evidence before the Court as to duck behaviour regarding territory and range that would even establish whether this issue arises.
Secondly, the Attorney-General submits that there is no evidence before the Court to suggest that these same ducks (whether local to, frequently inhabiting, or visiting Belalie Creek) require feeding to ensure their protection and preservation, or that to feed them would otherwise constitute a sufficient benefit to the community. Rather, the information available is that while the ducks at Belalie Creek are ‘well loved’, the Council does not encourage the feeding of the ducks.
Thirdly, the Attorney-General submits that it is consistent with RSPCA v Benevolent Society,[34] that because the gift is expressed as a mere direction to provide food, seed and bread for the ducks at a specified location, the necessary public benefit has not been established.
[34] RSPCA v Benevolent Society (n 28).
The Attorney-General’s submission does not address whether the feeding of the ducks (whether injurious or otherwise to the ducks or the environment) might be independently beneficial to the locals or tourists who enjoy feeding them.
What is understood to benefit animals may change with increased knowledge about them. There is no evidence before the court as to the type of duck, their usual diet, whether “food seed or bread’ would benefit them. The effect of feeding the ducks on the population, the water quality, the habits of other animals or the like, is unclear.
It is therefore difficult for the proposition that the gift is charitable to pass the first hurdle; that it be of benefit to animals in a manner that benefits those participating in or aware of the trust activity by contributing to the moral good of rendering assistance and securing the good treatment of the ducks at Belalie Creek.
I have also considered whether the gift might come within the Pemsel fourth category,[35] on the basis that it directly benefits the public, or at least a portion thereof being the local community and tourists who enjoy the enhancement of the amenity of the creek bank by the presence of ducks.
[35] Pemsel (n 23) 583.
In South Australian Employers' Chamber of Commerce & Industry Inc[36] in observing what is relevant to consider when determining the purpose of a trust, Blue J held:[37]
Nevertheless, usually the most probative evidence of the purpose of an activity will be evidence of its effect. In Federal Commissioner of Taxation v Word Investments Ltd (2008) 236 CLR 204; 70 ATR 225, Gummow, Hayne, Heydon and Crennan JJ said:
“In Baptist Union of Ireland (Northern) Corp Ltd v Commissioners of Inland Revenue [1945] NI 99, MacDermott J said:
‘the charitable purpose of a trust is often, and perhaps more often than not, to be found in the natural and probable consequences of the trust rather than in its immediate and expressed objects.
“Similarly, the charitable purposes of a company can be found in a purpose of bringing about the natural and probable consequence of its immediate and expressed purposes, and its charitable activities can be found in the natural and probable consequence of its immediate activities.”
(Footnotes omitted)
[36] SA Employers' Chamber of Commerce & Industry Inc (n 25).
[37] Ibid [90].
It might be suggested, then, that it is necessary to consider whether the natural and probable consequences of the gift are that the ducks continue to frequent the Belalie Creek and that this constitutes a charitable purpose by benefiting those locals and tourists who enjoy the amenity of that area.
Blue J went on to observe that the following had been found to come within the fourth category:[38]
[38] Ibid [141].
·improving the safety and protection of the community;
·improving and preserving a locality;
·creating and maintaining public parks and recreation grounds;
·erecting and maintaining public buildings and facilities;
·protecting the environment;
·protecting animals;
·improving agriculture and horticulture;
·advancing trade and commerce.
(Footnotes omitted)
Whilst the gift has a narrower effect than the categories listed above, it is not beyond argument that the gift is consistent with those which have been found to “create and maintain public parks and recreation grounds”.
However, the only evidence that has been advanced that touches upon the question of whether the gift might be characterised as one which benefits the public directly by providing enjoyment to people, as opposed to benefiting the public indirectly through the action of acting benevolently to animals and thereby contributing to the community’s moral rectitude, is that of Mr Wall. His evidence is that the staff of the council described the ducks as “well loved”.[39] This is insufficient to show a benefit to the community in the feeding of the ducks because the correlation between the feeding and the presence of the ducks is not established.
[39] FDN 9, Affidavit of Harry Christopher Wall affirmed on 16 December 2024 at [4].
The executor has no duty to gather further information as to the benefit to the public. There is inadequate evidence of such benefit. Therefore, it is undesirable to express a binding determination as to validity.
The executor would be justified in administering the deceased’s estate on the basis that the Belalie Creek Ducks Gift fails at law. It has not been shown to be a charitable gift. As the gift is not for charitable purposes, it would not be possible to save the gift by means of an application for a cy près scheme or trust variation scheme under section 69B of the Trustee Act 1936.
Issue 2 – what happens to the Belalie Creek Ducks Gift?
The gift contained in clause 8(d) of the deceased’s Will as amended by the Codicil concerns 50% of one of two equal parts of the residuary estate. The portion of the estate that corresponds with the failed gift falls to be distributed in accordance with Part 3A of the Administration and Probate Act 1919 which governs the distribution of intestate, and partly intestate, estates.
The effect of sections 72G(1)(c) and 72I of the Administration and Probate Act 1919 together is that where the deceased who dies intestate is survived only by children, the children will be entitled to the whole of the intestate estate in equal shares. In this case, the deceased is survived only by two adult daughters, Ms Gail Lesley Hunter and Ms Karen Jean McLeish. Each is entitled to an equal share of the intestate part of the estate.
For completeness, section 72K of the Administration and Probate Act 1919 applies where persons entitled to benefit on an intestacy have received other gifts under a will, or inter vivos gifts from the deceased. Section 72K operates to equalise benefits in such a case. However, section 72K has no operation in this case, as there has been no inequality of distribution as between Ms Hunter and Ms McLeish. The gifts they received under the Will were equal.
This outcome is consistent with Lempens v Reid & Ors,[40] in which the deceased’s will provided for the executor to hold the residue, “UPON TRUST as to one half thereof to my brother … in the event that my brother should die before me I leave this share to my niece. I GIVE the remaining half of my estate to such of them my friends who resided with me from overseas.”[41] The Court found that the gift to the overseas friends was void for uncertainty.[42] Gray J found that the failed gift of a share in residue led to partial intestacy passed in accordance with the law of intestacy unless the Will indicated otherwise.[43]
[40] (2009) 2 ASTLR 373.
[41] Ibid [2].
[42] Ibid [21]-[33].
[43] Ibid [34].
In the case at hand, the effect is that the Fred Hollows Foundation does not benefit from the failed gift but, irrespective of already being beneficiaries under clause 8(a) of the Will, the daughters share equally to the extent of the intestate part of the estate. No question of the gift vesting in the Crown arises under section 72G(1)(e). Nor does section 72K arise, as there is no need for equalisation of the gifts. They have been distributed equally by the Will and there is no evidence of any inter vivos gifts to either of the beneficiaries.
The executor would be justified in distributing the failed gift of the 25% portion of the residue in accordance with the intestacy provisions of the Act, such that the deceased’s two children are entitled to the whole of the 25% failed gift in equal shares.
Orders
1.The Court determines that the gift contained in clause 8(d) of the Will as amended by the codicil as it relates to the remaining 50% of the remaining one (1) equal part of the deceased’s estate for “the ducks, food seed or bread, at Belalie Creek” fails at law and passes on intestacy.
2.The executor would be justified in administering the estate of the deceased on the basis of the determination in paragraph 1 above.
3.The Court determines that the failed gift referred to in order (1) above passes to Gail Lesley Hunter and Karen Jean McLeish, daughters of the deceased, in equal shares pursuant to section 72G(1)(c) and section 72I(b) of the Administration and Probate Act 1919.
4.The executor would be justified in administering that portion of the deceased’s estate comprising the failed gift referred to in order (1) above on the basis of the determination in paragraph 3 above.
5.The applicant’s costs of and incidental to this application are to be paid out of the estate of the deceased.