Power v Juliet Tabain as Executor of the Estate of Jure Tabain
[2006] WASC 59
POWER -v- Juliet TABAIN as Executor of the Estate of JURE TABAIN [2006] WASC 59
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 59 | |
| Case No: | CIV:2386/2004 | 31 JANUARY 2006 | |
| Coram: | SIMMONDS J | 5/04/06 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | FILES POWER Juliet TABAIN as Executor of the Estate of JURE TABAIN |
Catchwords: | Wills and estates Trust for private church Whether trust for charitable purpose in the legal sense Invalidity of trust for whole of testator's real and personal property Intestacy as to residue Whether probate should be revoked |
Legislation: | Administration Act 1903 (WA), s 14 Charitable Trusts Act 1962 (WA), s 7 |
Case References: | Attorney General (NSW) v Donnelly (1957) 98 CLR 538 Bates v Messner (1967) 67 SR(NSW) 187 Gilmour v Coates [1949] AC 426 Hoare v Hoare (1896) 56 LT 147 Mavrideros v Mack (1998) 45 NSWLR 80 Re Tyrie (dec) [1970] VR 264 Royal National Agricultural and Industrial Association v Chester & Ors (1974) 48 ALJR 304 Thomson v Shakespear (1860) 45 ER 413 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
Juliet TABAIN as Executor of the Estate of JURE TABAIN
Defendant
Catchwords:
Wills and estates - Trust for private church - Whether trust for charitable purpose in the legal sense - Invalidity of trust for whole of testator's real and personal property - Intestacy as to residue - Whether probate should be revoked
Legislation:
Administration Act 1903 (WA), s 14
Charitable Trusts Act 1962 (WA), s 7
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Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr J C Curthoys
Defendant : Dr J J Hockley & Ms K L Williams
Solicitors:
Plaintiff : Frichot & Frichot
Defendant : CLP Lawyers
Case(s) referred to in judgment(s):
Attorney General (NSW) v Donnelly (1957) 98 CLR 538
Bates v Messner (1967) 67 SR(NSW) 187
Gilmour v Coates [1949] AC 426
Hoare v Hoare (1896) 56 LT 147
Mavrideros v Mack (1998) 45 NSWLR 80
Re Tyrie (dec) [1970] VR 264
Royal National Agricultural and Industrial Association v Chester & Ors (1974) 48 ALJR 304
Thomson v Shakespear (1860) 45 ER 413
Case(s) also cited:
Nil
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- SIMMONDS J:
Introduction
1 This is an action for a declaration that a provision in a Will did not create a valid trust, and for a further declaration, that the property the subject of that provision fell into residue, there was an intestacy as to the residue, and the residue was to be distributed equally between the plaintiff and the defendant. The provision in the Will created a trust in respect of all of the testator's property both real and personal for the benefit of the testator's "private Church", located in the Republic of Croatia.
2 This action raises two issues, the first of which must be approached by reference to an understanding of factual matters in Croatia, as well as aspects of the legal system there. One issue is as to the basis of the claimed invalidity of the trust, which was that it was not for a charitable purpose in the legal sense. The other issue is the future of probate of the Will if the trust were invalid, as the trust related to all of the testator's property.
3 Pursuant to pre-trial directions of mine the evidence at the trial before me was by affidavits and a statement of evidence of a Croatian member of the testator's family contained in her written statement and annexed to one of the affidavits in these proceedings. Neither party chose to cross-examine on any of the affidavits or on the statement, and no objection was taken to anything in those sources.
4 By the end of the hearing before me the parties had agreed on the terms of the orders that they asked me to make. I determined to make those orders. These are my reasons for that determination.
5 I first describe the background to the action. There is no contest over anything in that background. I then turn to consider the two issues raised by this action, and conclude with the orders in this case.
Background
6 The testator, Jure Tabain, died on 3 November 2003. His two children, Files and Juliet, survived him. However, it appears that his wife did not.
7 Jure made his Will on 4 September 2003. In his Will he referred to his daughter Juliet as "Julie". He appointed Files and Juliet his executors and trustees of his Will. Files renounced probate. Probate was granted to Juliet on 27 September 2004. Files is the plaintiff in this action. Juliet in
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- her capacity as the executor of the estate of Jure Tabain is the defendant in this action. Jure Tabain's Will contained the following provision, which was the focus of most of the hearing before me. The opening words of the provision were those that were said to create the invalid trust. However, for convenience, I set out the full text of the provision, cl 3:
"3. I DIRECT my Trustees to hold all of the property both real and personal comprised in my estate in trust for the benefit of my private church known as 'GOSPA BEZGRESNOG ZACECE' in Vela Luka, Croatia ('my Church') and in accordance with the following provisions:
(a) Other than for such of my real estate as is leased at the date of my death, my Trustees are to negotiate the leasing of my real estate properties for the best rentals they are able to obtain and wherever possible on long-term leases.
(b) During the continuance of this trust to take all reasonable steps to have all of my real estate leased for the best rental my Trustees are able to obtain and otherwise leased on such terms as normally apply to the letting of commercial or residential property as the case may require.
(c) As to that portion of my estate as comprises liquid assets in the form of monies held to my credit by any bank, building society, credit union or other financial institution, company shares or debentures, private loans or any other form of investment my Trustees are to maintain such investments until maturity and upon maturity re-invest both the capital and the accrued interest in investments authorised by Section 16 of the Trustees Act of Western Australia and otherwise realise such investments and invest in like manner.
(d) Of the income derived from then letting of my real estate and the investment of my liquid assets my Trustees are to apply such income as follows, namely:
- (i) In paying all fees and expenses properly incurred by my Trustees in the administration of my estate.
(ii) In payment of all legal and accounting fees incurred by my Trustees in the preparation of income tax returns and the taxation both State and Federal assessed upon such derived income.
(iii) To pay my church ONE THOUSAND DOLLARS ($1,000.00) per annum from the date of my death.
(iv) In paying all fees charges expenses and outgoings as may reasonably be required to maintain my real estate property in a lettable condition and being costs, fees, expenses and outgoings not usually payable by a lessee.
(v) In payment to FILES and JULIE one-half share each of the annual income remaining from the investment after the foregoing expenses and payments have all been made.
(vi) In paying to my Church the residue of the income derived from the letting of my real estate and the investing of my liquid assets after deducting all of the foregoing expenses."
8 It will be noted that there is a disposition, by cl 3(d)(v), of a one-half share of the annual income remaining from "the investment" after the expenses and payments specified have all been "made". I note also there is a tension between this disposition and that, in cl 3(d)(vi), calling on the trustees to pay to "my Church" the residue of the income derived from, among other things, "the letting of my real estate and the investing of my liquid assets after deducting all of the foregoing expenses". I do not need to deal with that tension. This is because it was not suggested before me that the disposition by cl 3(d)(v) would survive the invalidity of the trust purported created by cl 3. I also consider that the disposition is an inseparable part of that trust.
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9 There are two other references to the Church in the Will. For completeness I set the relevant clauses out below. Neither seems to bear on the issues in this case:
"4. I AUTHORISE my Trustees to expend a reasonable amount of money in ensuring that a reasonable part of the monies paid to my Church under the provisions of clause 3 hereof are regularly applied to the maintenance of all of the building improvements comprised in my church in a state of good condition and repair.
…
6. IN the event that upon the retirement of both of my Trustees and none of my grandchildren being able or prepared to accept appointment as substitute Trustees then I APPOINT the Perpetual Trustees Limited to be sole Executor and Trustee of this my Will. Upon the expiration of 79 years from the date of my death all of the real estate held by my Trustee upon trust is to be transferred to my Church conditional upon my church undertaking not to sell or transfer any of such real estate."
10 The history of the Church emerges principally from the statement translated from the original Croatian of the testator's sister, Marija Vlasic. A copy of the original statement is Annexure "ATZ1" to the affidavit of Ante Zorotovic, Exhibit 8. Mr Zorotovic is a solicitor who was instructed to advise and assist the plaintiff. He travelled to Croatia between 11 July 2004 and 16 August 2004. The Church is located in Vela Luka on the island of Korcula in that country. Mr Zorotovic deposes he is "conversant in both the Croatian and English languages and in the local dialect spoken in Vela Luka". With a Mr Mirosevic, a lawyer practising in Vela Luka, he took the statement in "ATZ1". The statement was written in hand by the lawyer referred to, read by Mrs Vlasic, confirmed by her as true and correct and signed by her at the bottom of each page. As I have indicated earlier, in my pre-trial directions I provided for this evidence to be admitted into evidence in these proceedings. A translation of Mrs Vlasic's statement is contained as an annexure to an affidavit of a translator, a Mr Zeljko Palcic, who is accredited by the National Accreditation Authority for Translators and Interpreters (NAATI) at Level 3 (professional level), which affidavit is Exhibit 9. I note in that statement that Mr Jure Tabain is also referred to as "Juraj Tabain". Juraj Tabain also appears on some of the land documents to which I refer below, and I take
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- those references to be to the testator. I further note that Juraj was also the name of Mrs Vlasic's great great grandfather, and of her grandfather, as appears from her statement.
11 The Church is described in Mrs Vlasic's statement as "the Family Chapel The Madonna of the Immaculate Conception". It was built by "the grandfather of my father and Jure's father", and "was the chapel belonging to the Tabain family ever since". After the death of the grandfather referred to (Mrs Vlasic's and the testator's great grandfather), the grandfather of the testator and Mrs Vlasic" kept the church as his own". After his death, Mrs Vlasic's mother kept the keys of the church, which were and are "the only key of the little church chapel".
12 During the 1950s there was a period when the key to the Church was lent to a person who appears to have been a family friend and who suffered from incurable shaking. This was to permit her to go to the Church and pray. The period was two years, and at its end the key was returned to the mother. There was then a period when the key was left with two nuns so they could use the Church for prayer. It appears no-one else used the Church during that period. At the beginning of the 1960s, the nuns moved away and returned the key to the mother. After her death, and with the testator's agreement, Mrs Vlasic kept the key and had the Church "under my full control".
13 Mrs Vlasic and the testator provided all of the vestments for a mass service, which were kept in the Church. The "family Tabain" and the testator have paid for all of the repairs and restoration in the Church. The family had in the nineteenth century purchased a valuable painting which is kept on the altar of the Church. The Church was also consecrated in the nineteenth century.
14 Currently the Church is only used for religious purposes twice a year. On 8 December, which is the Feast of the Immaculate Conception, a mass for the "family Tabain" is held. Just before the fourth Sunday in May, a mass is held in the memory of Mrs Vlasic's late husband.
15 Prior to each such mass, Mrs Vlasic visits the parish priest and pays for the mass. The parish priest comes to the Church to solemnise the mass on those occasions. He does not bring with him the mass vestments because, as I have indicated, the necessary mass vestments are kept in the Church.
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16 It further appears from Mrs Vlasic's statement that the Church is not used for any other purposes than those described, with the exception that from time to time some tourists come to ask to be shown its interior.
17 It seems to me that this history and current useage strongly support the characterisation of the Church as a private one. To the extent the Church is used for services, they are masses only as Mrs Vlasic pays for them, in memory of persons with a connection to the "family Tabain". She rather than any religious order or office controls access to the Church.
18 This private character is further supported by the location of the church, and its registered title and occupation.
19 I had evidence as to ownership and occupation registration in Croatia from the affidavit of a solicitor, Vitomir Dangubic, Exhibit 11. Mr Dangubic has a background as a former legal practitioner in the Republic of Yugoslavia, and as a legal practitioner in this jurisdiction. Mr Dangubic has dealt with people from Croatia in relation to property issues there, and has also dealt with legal practitioners there. I am satisfied he has expertise in Croatian law that is sufficient for the purposes of his affidavit, on which I rely.
20 It appears that there are in Croatia a Land Registry and a Cadastral Registry. The Land Registry's purpose is to provide a register of ownership details of land. The Cadastral Registry's main purpose in relation to property rights is to provide a register of possessors or occupiers of land that among other things assists the local Shire to collect land taxes.
21 For the purposes of dealing with title and occupation in relation to the Church, it is convenient I start with the Cadastral Registry's register. In the Zorotovic affidavit, Exhibit 8, Mr Zorotovic deposes that with Mr Mirosovic he extracted a list of Cadastral lots, for those shown on the Cadastral District Plan (which the two also extracted) that showed lots including the one on which the Church was located. The list of Cadastral lots appears as an extract from the register in the Cadastral Registry. The lot descriptions appear to refer to the Plan. The Plan shows the lot on which the church is located as Lot 3718. Lot 3718 appears to be surrounded by Lot 2149, out of a corner of which appears to have been excised Lot 2150. Mr Palcic's affidavit, Exhibit 9, provides a translation of the extract from the Cadastral Registry. It shows the "possessor's name" for each of the three Lots as "Jure Tabain" and "Ivan Tabain". The latter appears, from Mrs Vlasic's statement, to be the name of Mrs Vlasic's
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- father, although Ivan Tabain is also shown to have been the name of her great grandfather. It seems that Mrs Vlasic's father is also deceased but it is not clear when this occurred.
22 In the Zorotovic affidavit, Exhibit 8, it is deposed that, with Mr Mirosovic, Mr Zorotovic also obtained, this time from the register in the Land Registry, title details for Lots 3718, 2149 and 2150. Mr Palcic's affidavit, Exhibit 9, provides a translation of this extract. The translation shows, as at 22 July 2004, for Lot 3718, "property rights registered to" the "Municipality of Vela Luka". It appears that this was a registration maintained in error. This emerges from documents, copies and translations of which are annexed to an affidavit of a Ms Coral Petkovich, who is an accredited NAATI Level 3 translator. The Petkovich affidavit is Exhibit 10. From those documents it appears that the Administration of the Municipality resolved in May 2005 that the Municipality had "no ownership claim" "for the building on Lot No 3718 in the Vela Luka Land Registry Municipality, described as the small church of the Blessed Virgin Mary of Immaculate Conception". The Municipality "therefore" granted "permission for the ownership interest to be registered in the Land Registry" in the name and in favour of "Juraj Tabain deceased, son of the deceased Ivan of Vela Luka". A subsequent decree of The Municipal Court in Korcula decreed that such registration was permitted, and an extract from the register in the Land Registry as at 13 July 2005 shows for "Building 3718 stone-walled construction, chalet" under "Ownership List" "Juraj Tabain (son of Ivan, dec.)", "share 1/1".
23 The extract from the register in the Land Registry for the three Lots, Lots 3718, 2149 and 2150, shows for the latter two, "property rights registered to" Juraj Tabain as to 6/12, and various other individuals, including it seems Mrs Vlasic, as to 1/12 each.
24 It therefore appears to me that the Church is privately occupied and owned, and it is surrounded by privately occupied and owned land. At the date of his death, the testator was shown as the owner and as an occupant of the Church land and he and at least one other member of the Tabain family with others were shown as owners of the immediately surrounding land, and he was shown as one of its occupants.
Was the trust for the Church in the Will valid?
25 The trust purportedly established by cl 3 is not for a person but for a building. As such the trust will be valid only as a trust for a purpose or purposes that is or are exclusively charitable: Ford H A J et al Principles of the Law of Trusts, 3rd ed, loose-leaf, Sydney, LBC Information
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- Services, 1996, [5,000]. The trusts here are not capable of falling into any of the exceptions to this principle: Ford et al, [5,240].
26 A widely accepted statement of the basis of the principle just referred to is that a trust must have an object who is a person with a right of suit to enforce it, or there must be someone "to whom the law gives the same right as if he were so pointed out", and in the latter case that can only be the Crown, as parens patriae. The Crown only has such a right in respect of such trusts as are "in the legal sense charitable": Attorney General (NSW) v Donnelly (1957) 98 CLR 538, per Kitto J at 579.
27 The circumstances in which a trust is charitable in the legal sense are conveniently described in Royal National Agricultural and Industrial Association v Chester & Ors (1974) 48 ALJR 304. That case concerned the validity of a gift in a Will by which the testator left the residue of his estate to the Association to apply the income "in improving the breeding and racing of Homer Pigeons". The Court (McTiernan, Menzies and Mason JJ) said this in relation to the question of whether such a purpose was charitable in the legal sense (at 305):
"To justify an affirmative answer, it seems to us that it must, at least, be found that the breeding of racing pigeons is a purpose both beneficial to the community and within the spirit and intendment of the preamble to the statute 43 Eliz. 1, c. 4. The House of Lords' decisions in Williams' Trustees v. Inland Revenue Commissioners, [1974] A.C. 447, and Scottish Burial Reform and Cremation Society v. Glasgow Corporation, [1968] A.C. 138, provide modern authority that the existence of these two elements is both necessary and sufficient to warrant the conclusion that a particular purpose is charitable in law. This Court so decided in Incorporated Council of Law Reporting (Q.) v. Federal Commissioner of Taxation (1971), 125 C.L.R. 659; see Barwick C.J. at pp. 667 and 669."
28 A gift for the advancement of religion is "prima facie charitable", but there remains "the overriding question" whether the gift is "in fact beneficial to the public (or a section of the public), and not simply for the benefit of the adherents of the particular religion themselves": see Maurice S G and Parker D B, Tudor on Charities, 7th ed, London, Sweet & Maxwell 1984 at 56; see also Ford (supra) at [19060], [19070], and Gilmour v Coates [1949] AC 426 (trust for community of cloistered nuns held not to be charitable in the legal sense).
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29 Thus, a gift by Will to a religious organisation for the purpose of erecting a church to be available for the purpose of conducting services in it is a valid charitable gift: Re Tyrie (dec) [1970] VR 264. However, a settlement granting a tithe rentcharge on trusts for payment of the salary of a priest officiating and performing services of religious worship in the private chapel built by the settlor adjoining his mansion-house was held not to have created a valid charitable trust in Hoare v Hoare (1896) 56 LT 147, Chancery, Chitty J. I particularly note from the latter case that his Honour quoted with approval (at p 149) the following passage from Thomson v Shakespear (1860) 45 ER 413 at 417, which was directed to the question whether a bequest, construed as one for the purposes of a museum at private property, being Shakespeare's birth place, held absolutely by certain persons and where "the application of [the property] cannot be compelled", could be applied cy pres:
"But I am of opinion that this case falls rather within the principles of the Attorney-General v. Whitchurch [(3 Ves 141)] and other cases of that description, where a particular place is of the essence of the establishment, and where you cannot impute to the giver an intention independent of place. That is my opinion upon the testator's will, and under the impossibility which, as I think, exists of imputing to him any intention independent of place, you find that the place which he has selected is one not devoted to charity, not devoted to any public purpose, and the appropriation of which to any such object as he has pointed out cannot be secured."
30 Chitty J later said of his case (at 150):
"I will not deal with this case separately in the first instance, because the chapel is here described as a private chapel. It has never been consecrated, and it never has been and never will be, in my opinion, dedicated by proper conveyance to the purposes of a charity. It is a room really in or adjoining the family mansion, which is so fitted up as that it can be properly used as a chapel for performing Divine service; but no person has a right to go there, no member of the public has a right to go there, not even the tenants of the estate have a right to go there, nor the agricultural labourers; it is simply a private chapel in a gentleman's house. Now I can find in that no charitable object. It appears to me, shortly stated, to be no more than a salary to be given to a private chaplain of any gentleman of position in this country."
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31 It seems to me that cl 3 does not provide for a trust that is in the legal sense charitable. There is on the face of it no specification in cl 3 of the purposes for which the trustees are to support the Church. However, I find that no intention can be imputed to the testator independent of place, and I further find there is evidence that the place was devoted to religious purposes. Thus, I have noted, as I have indicated from Mrs Vlasic's statement, that the Church was consecrated some time ago, unlike the Chapel in Hoare. However, the Church is a private Church. Even if the trust can be seen to one for the advancement of religion, there is no giving over of the place for the purposes of public worship or other public religious purposes. No member of the public has a right to go there for religious or other purposes: any such right would be inconsistent with the character of the place as a private Church, as its historical and current uses, as well as its location, title and occupancy, indicate that character. It follows there is not here that public benefit that is an overriding requirement in this area of the law.
32 Accordingly, the trust in cl 3 is void as not being for a purpose that is in the legal sense charitable. For the same reasons, no question arises in this case of any alternative application of the property for religious purposes, by reference to the Charitable Trusts Act 1962 (WA), s 7 or otherwise.
33 As there is no residual clause in the testator's Will, there is therefore an intestacy as to the property the subject of cl 3. That property, as I have indicated, is "all of the property both real and personal comprised" in the testator's estate.
34 By virtue of Administration Act 1903 (WA), s 14, Table Item 5, the property falls to be divided equally between the testator's surviving issue, Files Power and Juliet Tabain.
What is the effect on probate of the Will?
35 The parties raised before me the question whether the failure of the trust in cl 3 might lead to an order for revocation of probate of the Will. This is because cl 3, as I have indicated, purported to deal with all of the property the subject of the Will. By the conclusion of the hearing both parties had agreed that, at least so far as this action was concerned, the probate of the Will was not affected.
36 I agree. In my view this is not a case of a grant of probate having been made in error, as where the Will itself was not valid. See Mason, K and Handler L G, Wills Probate and Administration Service New South
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- Wales, Sydney Butterworths 1985 – loose-leaf, at [1345.2]. This conclusion would appear to leave the matter of revocation of probate to be resolved by reference to considerations as to the proper administration of the estate, as affected by supervening factors: [1345.3].
37 A leading authority on the exercise of jurisdiction to revoke probate because of supervening matters is Mavrideros v Mack (1998) 45 NSWLR 80, NSWCA. There, Sheller JA, Priestley and Beazley JJA agreeing, said this as to the "principles to be applied", referring to Bates v Messner (1967) 67 SR (NSW) 187 (45 NSWLR at 101 – 102):
"In that case, the appeal was from a decision of Myers J dismissing an application for the revocation of a grant of probate made to the respondent. Sugerman JA (at 189; …) quoted from the judgment of Jeune P in In the Goods of Loveday [1900] P 154 at 156 and said the principle there stated had been consistently followed and no doubt cast on its correctness in point of principle. Jeune P in the passage quoted said:
'After all, the real object which the court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto; and I can see no good reason why the court should not take fresh action in regard to an estate where it is made clear that its previous grant has turned out abortive or inefficient. If the court has in certain circumstances made a grant in the belief and hope that the person appointed will properly and fully administer the estate, and if it turns out that the person so appointed will not or cannot administer, I do not see why the court should not revoke an inoperative grant and make a fresh grant.'
Asprey JA said (at 191 – 192; 39 – 40):
' … that the essential basis of the exercise of the court's inherent jurisdiction to revoke a grant of probate is that emphasised by Jeune P, namely, that the real object which the court must always keep in view is the due and proper administration of the estate in the interests of the parties beneficially entitled thereto on the part of the person to whom and by whose oath as to the faithful performance of his duties the court has been induced to entrust the office of
- executor. The terms used in some of the previously decided cases with relation to the circumstances which have given rise to the exercise of the jurisdiction of revocation, such as "abortive", "inefficient", "useless" or "ineffectual", are simply descriptive of a situation in which the court has been persuaded to the view that its grant, which was predicated on the oath of the executor named in the will that "he will pay all the just debts and legacies of the said deceased so far as the estate of the said deceased will extend and the law shall bind him, and that he will otherwise well and faithfully administer the said estate according to law; and that he will render a just and true account of his administration" has been circumvented by a breach of that oath which is in effect an undertaking to the court making the grant. I shall make no attempt to define all circumstances which may attract the exercise of the court's jurisdiction, but where circumstances clearly appear to have arisen after a grant of probate which impel the court to the firm conclusion that the due and proper administration of an estate has either been put in jeopardy or has been prevented either by reason of acts or omissions on the part of the executor or by virtue of matters personal to him, for example, mental infirmity, ill health, or by virtue of the proof of other matters which establish that the executor is not a fit and proper person to carry out the duties which he has sworn to the court that he will perform, the court may exercise its inherent jurisdiction to revoke the grant.'"
38 There is no suggestion in this case that there has been or is in prospect any conduct, incapacity or other circumstances of the defendant of the sort referred to in those dicta. Under those circumstances, it is not apparent to me why I should consider the exercise of any jurisdiction I have in this action to revoke probate. Nor, by the end of the hearing at least, as I have noted, was the defendant asking for any such jurisdiction to be exercised, whether because of the conclusion I have drawn with respect to the validity of the trust in cl 3, or otherwise.
Final orders
39 For these reasons the final orders as agreed by the parties were appropriate for me to make. They are:
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- 1. Clause 3 of the Will of Jure Tabain executed on 4 September 2003 does not create a valid trust.
2. The property referred to in cl 3 of the Will falls into residue; there is an intestacy in respect of the residue; and the residue is to be distributed equally between the plaintiff and the defendant, in accordance with the Administration Act.
3. The parties' costs of this action be paid out of the estate on a solicitor client basis.
0
4
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