Kobras v Lutheran Church of Australia Incorporated

[2005] NSWSC 817

CITATION:	Kobras v Lutheran Church of Australia Incorporated [2005] NSWSC 817
HEARING DATE(S):	09/08/05
JUDGMENT DATE :	9 August 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
DECISION:	Declaration that testator's Australian estate passes as an outright gift.

CATCHWORDS:	CHARITIES [52]- Will written in foreign language- Testator left estate to two churches- In original translation estate was to be applied "along the lines of a trust/foundation"- Correct translation only made reference to "foundation"- True construction of will meant that estate was to pass as an outright gift. SUCCESSION [153]- Will written in foreign language- Original will and translation attached to letters of administration- Court can look to original to ascertain meaning and intent.
LEGISLATION CITED:	Charitable Trusts Act 1993, s 23
CASES CITED:	Gerhardy v South Australian Auxiliary to the British & Foreign Bible Society Inc (No 3) (1986) 44 SASR 195 Gray v Australian Cancer Foundation for Medical Research [1999] NSWSC 492 Hester v Commissioner of Inland Revenue [2005] 2 NZLR 473 Re Cliff's Trusts [1892] 2 Ch 229 Re Manners [1923] 1 Ch 220 Reynolds v Kortright (1854) 18 Beav 417; 52 ER 164
PARTIES:	Michael Kobras (P) Lutheran Church of Australia Incorporated (D1) German Lutheran Church Sydney Incorporated (D2)
FILE NUMBER(S):	SC 6635/04
COUNSEL:	C Harris (P)
SOLICITORS:	Schweizer Kobras (P)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 9 August 2005

6635/04 – KOBRAS v LUTHERAN CHURCH OF AUSTRALIA INCORPORATED

JUDGMENT

1 HIS HONOUR: This is a suit to determine the true construction of the will of the late Professor Walter Kurt Schlesinger, so far as his Australian estate is concerned.

2 The deceased died in 1998. His will is written in German and was proved in this Court. Letters of administration, with the will annexed, were granted to the plaintiff, as Syndic of the Lutheran Church of Australia Incorporated and German Lutheran Church in Sydney Incorporated, on 30 July 2004.

3 The letters of administration contain the original will written in German in the testator's handwriting, as well as a translation made by an accredited translator.

4 In the translation, the relevant part of the will reads as follows:

“My estate in Australia, to wit the real estate property ... be put to use in the Greater Sydney Region and the facilities of the Lutheran Mission in the sense that it is used along the lines of a foundation/trust for training courses, conferences, seminars, further education and as a Lutheran boarding house in co-operation between the Lutheran Church in Australia with its registered office in Adelaide (trustee Pastor Martin Prenzler, 6 O'Connell St, Gympie, Qld, Australia) and the German Lutheran Church in Sydney, 40 Tryon Rd, Lindfield, NSW.”

5 Where one has a will in a foreign language, particularly where the probate contains both the original foreign language and the English translation, the court has the right to look at the original will and the original expressions in the foreign language. This is made particularly clear by the judgment of Eve J in Re Manners [1923] 1 Ch 220 and see also Reynolds v Kortright (1854) 18 Beav 417; 52 ER 164; Re Cliff's Trusts [1892] 2 Ch 229 and Hawkins on The Construction of Wills, 5th ed (Sweet and Maxwell, London, 2000) para 3-36 on p 77.

6 The problem that presents itself from the English translation is that the testator appears to be setting up a trust. The trust is for training courses, conferences, seminars, further education and as a Lutheran boarding house. One can make a trust in favour of designated people, or for purposes, but the purposes must be charitable. You often have a valid charitable trust, or religious purpose, but cases such as Hester v Commissioner of Inland Revenue [2005] 2 NZLR 473 show that merely because there is a religious flavour to the case does not necessarily mean that there is a valid charitable trust for religious purposes. Thus, if one is providing for education of employees of a religious body, one does not usually have a charitable trust. On the other hand, if one is holding seminars to spread the Gospel, one is.

7 Again one can have an educational charitable trust, but the gift in the present case does not appear to be directed to education, as such.

8 There is another problem in that if a trust is set up by the will the trustee may validly devote the fund to non-charitable purposes as well as charitable purposes, and it does not appear to be the sort of trust that can be cured by s 23 of the Charitable Trusts Act 1993.

9 Accordingly, the trustee of the will has seen these problems and has asked the court to construe the will so it can be seen whether there is really a charitable trust or whether it is an out-and-out gift to the two named Lutheran churches.

10 At this stage I should say that this is not a case such as I had to deal with in Gray v Australian Cancer Foundation for Medical Research [1999] NSWSC 492, where there is a gift for a general topic, in that case, cancer research. In this case there is no such general gift to Lutheran churches. Although it seems that there are various churches throughout Australia that could be called Lutheran churches, the two defendants, for which the plaintiff is Syndic, have names which almost exactly correspond with the names used in the will, save that both are actually incorporated. However, the testator recognised that they were incorporated by talking about the registered office.

11 When one goes, however, to the German text it seems to me a lot of the problems are overcome. I am quite sure that the professional translator who provided the translation in the probate did his best to get the sense of the will. However, I have been assisted by the solicitor for the plaintiff, who speaks fluent German. When one has a lawyer look at the words, a different flavour comes through. Looking at the German text of the will, one sees that after the address "40 Tryon Rd, Lindfield, NSW" there are a series of other words which I have set out below. Those words have not been translated by the official translator, but he has incorporated them earlier on in the will so as to produce a translation which reads grammatically and sensibly.

12 In the original German the word "trust" is not used at all, as one would expect with a will which appears to have been written in Austria by a person familiar with European law. The word that appears as the last word in the will is "Stiftung", a word which denotes the European concept of a foundation. A Stiftung is not a trust. Although it is difficult to define simply what it is, essentially a Stiftung is a private corporation without members, but with a Board of Directors and a constitution, which confines its activities to designated (charitable) purposes.

13 If one goes to the English text and stops at the words "Lutheran Mission", the German then proceeds as follows:

“Nutzbar gemacht wird in dem Sinne dass sie für Schulungen Tagungen, Seminare, Weiterbildungen und als Lutherisches Gästehaus".

14 Those words literally translated by a lawyer mean “making available this property for the purposes of schooling, seminars, further education and also a Lutheran guesthouse”. There is no reference in that phrase at all to the words "foundation/trust".

15 However, at the very end of the will, after the address, one has these words: "Verwendung findet im Sinne uner Stiftung", which mean again "to use it for the purposes of a foundation or a Stiftung".

16 Now that, it seems to me, puts a different complexion on the will. The testator is giving his property to the two branches of the Lutheran Church which he has designated, and it seems to me that he is expressing the desire that those bodies should make available that property for the rather vague purposes of schooling, which is translated as training courses, further education and for seminars. He makes the point at the very end again that it is to be used for the purposes of a foundation, meaning that they are to use it in some sort of fiduciary way, but it does not go so far as to impose any charitable trust on the property.

17 It almost gets close to the situation in Gerhardy v South Australian Auxiliary to the British & Foreign Bible Society Inc (No 3) (1986) 44 SASR 195, where the testator gave his property to his trustee to be disposed of “as seems fit” between various bodies.

18 Accordingly, in my view, although I can well understand why the trustee has brought the matter to the court, the suggestion in para 1 of the amended summons should not be adopted and the court should declare that upon the true construction of the will of the late Professor Walter Kurt Schlesinger, and in the events which have happened, the whole of his Australian estate passes to the first and second defendants in equal shares.

19 The costs of the plaintiff on the indemnity basis are to be paid out of the estate.

******************