CATCHWORDS: WILLS, PROBATE & LETTERS OF ADMINISTRATION - Succession Act s.64 - delegation of testamentary powers
TRUSTS & TRUSTEES - powers of appointment - whether mere power or trust power - certainty of object - whether list certainty or criterion certainty test applies
TRUSTS & TRUSTEES - charitable trusts - public benefit - Act of Elizabeth - whether 'elimination of war' a charitable purpose - whether 'raising the standard of life' a charitable purpose - separate purposes - Trusts Act s.104
CONFLICT OF LAWS - choice of law - construction - essential validity
Counsel:Mr Nickel for the Public Trustee
Mr Samios for United Nations Association of Australia
Mr Lyons for the Attorney-General
Mr Mullins for the next of kin
Solicitors:Official Solicitor to the Public Trustee for the Public Trustee
Hemming & Hart for United Nations Association of Australia
Crown Law Office for the Attorney-General
McCullough Robertson for the next of kin
Hearing date: 18 December 1996
IN THE SUPREME COURT
OF QUEENSLAND
O.S. No. 9438 of 1996
Before the Hon. Mr Justice Thomas
[Re Rules of the Supreme Court]
IN THE MATTER of the Rules of the Supreme Court Order 3 Rule 20 and Order 64 Rule 1A
James Frederick Blyth made his last will on 4 December 1937 at Colchester, England. He died in the Nazarene Nursing Home, Redcliffe, Queensland on 28 August 1986. He had assets in both England and Queensland of a total value exceeding $1.3 million (Australian). By clauses 2, 3 and 4 of his will he made gifts to various persons, but all those persons died during the forty-nine years between the making of the will and the testator's death. The executors named by the will were Mr Buteux and the Public Trustee (in England). Mr Buteux predeceased the testator, and the Public Trustee (England) has renounced any right to a grant. In the event, on 17 January 1991 the Public Trustee of Queensland was granted an order to administer the whole estate. The present application is for construction by the Court of clause 5 of the will. It states:
"FROM AND AFTER the decease of the last survivor if such event shall occur before the expiration of twenty one years from the date of my decease 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.
Continue reading Re Blyth
Sign in free to access the full text
Details
AGLC
Re Blyth [1997] QSC 30
Case
[1997] QSC 30
Decision Date
CaseChat Overview and Summary
The case of Re Blyth involved the interpretation of clause 5 of the will of James Frederick Blyth, which provided for the distribution of the testator's residuary estate to organisations working for the elimination of war and for raising the standard of life throughout the world. The Public Trustee of Queensland was granted an order to administer the estate and sought construction of the clause from the court. Various parties, including the next of kin, the United Nations Association of Australia, the Attorney-General, and the Public Trustee, made submissions on the matter. The court considered several issues, including the choice of law, the validity of the discretionary power of appointment, whether the gifts were charitable, and whether a scheme was necessary. The court found that the applicable law was that of England for construction of the will and that of Queensland for other matters. The power of appointment conferred upon the trustee was valid and in the nature of a trust, rather than a mere power. The gift to organisations working for the elimination of war was valid, while the gift to organisations formed for the purpose of raising the standard of life throughout the world failed for uncertainty. The former gift could be upheld as a charitable gift, while the latter could not. The court concluded that there was no need for a scheme at that stage and that the Public Trustee should advertise more widely to exercise its discretion in selecting eligible organisations. The final orders included the appointment of a representative for the next of kin, a determination of the validity of the gifts, and an order for costs to be paid out of the estate.