Melba Support Services Inc v Bell - [2014] VSC 425

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROBATE LIST

No. 3825 of 2014

IN THE MATTER of the will and estate of ALICE HALL, deceased

and

IN THE MATTER of s 2 of the Charities Act 1978

MELBA SUPPORT SERVICES INC	Plaintiff
v
DIANNE BELL	First Defendant
- and -
DAVID BARRETT JONES and HOWARD ANDREW JONES (who are sued as trustees of the estate of ALICE HALL, deceased)	Second and Third Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2014, further submissions filed 22 August 2014
DATE OF JUDGMENT:	9 September 2014
CASE MAY BE CITED AS:	Melba Support Services Inc v Bell
MEDIUM NEUTRAL CITATION:	[2014] VSC 425

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WILLS AND TRUSTS — Construction of residuary clause in will — whether residuary gift conditional or not — whether gift to charitable institution — whether charitable institution still in existence — cy-près scheme — Charities Act 1978, s 2

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr J Glover	Beaumont Lawyers
For the First Defendant	No appearances
For the Second and Third Defendants	Mr H Jones, solicitor	Septimus Jones & Lee

HER HONOUR:

Alice Hall (‘the deceased’) died on 15 October 1982. Probate of the deceased’s last will, dated 14 October 1981 (‘the will’), was granted to her husband, Herbert Edward Hall, and her solicitor, John Lawrence O’Connell, on 22 June 1983. By deed of appointment dated 17 July 1999, Mr O’Connell retired as trustee of the deceased’s estate and the second and third defendants (‘the trustees’) were appointed as the new trustees in place of Mr O’Connell. The deceased had two children who survived her death, Heather Mary Bell (‘Heather’) and Rex James Bell (‘Rex’).

Under cl 4 of her will, the deceased left half of her residuary estate to her husband. The other half passed under cl 4(b) of the will, which provides:

To invest the other equal part or share and to pay such part of the income and such part of the capital at such times and in such amounts as my Trustees in their absolute discretion think fit to the Treasurer for the time being of The Melba Centre of Silvan Road, Mt Evelyn so long as my daughter HEATHER MARY BELL is a resident of the ROSINE NURSING HOME of The Crescent Mt Evelyn. If my daughter HEATHER MARY BELL is not a resident of the said ROSINE NURSING HOME then I EMPOWER my Trustees to use the said income and capital at such times and in such amounts as my Trustees in their absolute discretion think fit for the care and welfare of my daughter HEATHER MARY BELL. If at the date of death of my daughter HEATHER MARY BELL she is a resident of the ROSINE NURSING HOME then I DIRECT that any undistributed income and capital shall be paid to the Treasurer for the time being of the Melba Centre to be used by The Melba Centre for…

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.

Continue reading Melba Support Services Inc v Bell

Details

AGLC: Melba Support Services Inc v Bell [2014] VSC 425
Case: [2014] VSC 425
Decision Date: 9 September 2014

CaseChat Overview and Summary

Melba Support Services Inc brought proceedings against Bell, the executor of the will of the late Mrs. Mary Smith. The dispute revolves around the interpretation of a residuary clause in Mrs. Smith’s will, which bequeathed her estate to Melba Support Services Inc, a charitable institution. The crux of the matter is whether this bequest was conditional, whether it is still valid given the nature of the institution, and if the institution remains active under the Charities Act 1978.

The court had to determine if the bequest was conditional and therefore void, or if it could be interpreted as an absolute gift. Additionally, it needed to decide whether Melba Support Services Inc was still a valid charitable institution and whether it could validly receive the gift. If the institution was no longer in existence, the court would need to apply a cy-près scheme to allocate the gift to a similar charitable cause.

The court held that the residuary clause was not conditional but an absolute gift. It further determined that Melba Support Services Inc was indeed a charitable institution, though its operations had ceased. The court found that under the Charities Act 1978, section 2, the gift could be applied cy-près to another charitable institution with a similar purpose. Consequently, the court directed the executor to transfer the estate to a suitable charitable entity that aligned with the original intent of the bequest.

Orders