Re Dubberke
[2019] VSC 86
•21 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S CI 2017 03379
IN THE MATTER of the Will of CLIVE MCDONALD DUBBERKE, deceased
-and-
IN THE MATTER of an application pursuant to Rule 54.02 of the Supreme Court (General Civil Procedure) Rules2015
| PAMELA SUE MARSHALL | Plaintiff |
| v | |
| THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 21 February 2019 |
CASE MAY BE CITED AS: | Re Dubberke |
MEDIUM NEUTRAL CITATION: | [2019] VSC 86 |
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WILLS AND TRUSTS — Construction of will — Where gift made to charity not in existence at date of death — Whether gift was for charitable purposes — Whether gift should be applied cy-près — Supreme Court (General Civil Procedure) Rules 2015, r 54.02.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S F McNab | Marshalls & Dent & Wilmoth |
| For the Defendant | No appearance |
HER HONOUR:
Introduction
Clive McDonald Dubberke died on 7 October 2014, aged 90 years. Probate of the deceased’s will was granted to the plaintiff on 22 January 2015. At the date of his death, the deceased’s estate was valued at $815,000.00.
Paragraph 3 of the deceased’s will provides as follows:
I GIVE DEVISE AND BEQUEATH all my real and personal estate of whatsoever nature and wheresoever situate or which I may have power to dispose of at my decease unto and to the use of my trustees with full power of sale of the whole or part thereof at their absolute discretion UPON TRUST to pay all my just debts funeral and testamentary expenses and to pay all Probate Succession Estate Death and all other duties payable under this my Will and after payment thereof to stand possessed of the residue then remaining UPON TRUST
(a)as to one-half thereof to the SALVATION ARMY VICTORIA PROPERTY TRUST of 39 Park Street South Melbourne in the said State absolutely to be used for its religious work or for its work amongst people in necessitous circumstances in the State of Victoria;
(b)as to the remaining half, to the Childrens’ Cottages, Kew in the said State absolutely to be used for the benefit of the residents therein.
The Childrens’ Cottages Kew was in existence when the deceased executed his will but was not in existence at the date of his death. The Salvation Army Victoria Property Trust was in existence at the time of the execution of the will and is still in existence.
Plaintiff’s application
Pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules2015, by originating motion filed 23 August 2017, the plaintiff seeks answers to the following questions:
(1) In the events that have happened and on a true construction of the will of the testator does the gift contained in paragraph 3(b) of the will namely:
‘to stand possessed of the residue then remaining UPON TRUST
(a)as to one-half thereof to the SALVATION ARMY VICTORIA PROPERTY TRUST of 39 Park Street South Melbourne in the said State absolutely to be used for its religious work or for its work amongst people in necessitous circumstances in the State of Victoria;
(b)as to the remaining half, to the Childrens’ Cottages, Kew in the said State absolutely to be used for the benefit of the residents therein.’
create a valid charitable trust?
(2) If the answer to question 1 herein is ‘Yes’; are the purposes of the trust created capable of being applied in accordance with the directions contained in paragraph 3(b) of the will?
(3)If the answer to question 2 herein is ‘No’; can the purposes of the trusts created by paragraph 3(b) of the will be applied cy-près?
(4)If the answer to question 3 herein is ‘Yes’; what body, or institution should be the means of carrying out the purposes of the trust created by paragraph 3(b) of the deceased’s will cy-près?
(5) If the words of paragraph 3(b) do not create a valid charitable trust does the gift to the Childrens’ Cottages Kew lapse?
(6) If the gift to the Childrens’ Cottages Kew has lapsed; can the lapsed gift be paid to DHHS or the Salvation Army Victoria Property Trust?
(7)If the answer to question 6 herein is ‘No’; who is entitled to the one-half of the deceased’s residuary estate dealt with by paragraph 3(b) of the deceased’s will?
Procedural history
The deceased did not marry and had no children. His five siblings predeceased him. One sibling had six children, five of whom survived the deceased. The deceased also had five half-siblings, who had a total of four children that survived him. The surviving relatives of the deceased were notified of the proceeding. None of them sought leave to be added as a defendant in the proceeding.
By order made 28 March 2018, the Attorney-General for the State of Victoria was joined as the defendant to the proceeding.
On 19 November 2018, the plaintiff filed written submissions. The Attorney-General did not file any written submissions.
Question 1: Does the gift in paragraph 3(b) of the will create a valid charitable trust?
As stated, the Childrens’ Cottages Kew was in existence when the deceased executed his will, but was not in existence at the date of his death. In an affidavit sworn 12 July 2017, Ms Shauna Walter, an authorised representative of the East Division of the Department of Health and Human Services (‘DHHS’), provided the following details as to its demise:
The closing of [the Childrens’ Cottages Kew]
[The Childrens’ Cottages Kew] was established in approximately 1887 and provided accommodation and education to children with intellectual disabilities. [The Childrens’ Cottages Kew] was closed in mid 2008 at which time cottage residents were relocated from the site. I understand that approximately 363 residents were relocated to 73 purpose-built group homes across the State, predominantly in the Melbourne metropolitan area, and that other cottage residents were relocated to the twenty group homes built on the existing site of the former [Childrens’ Cottages Kew] where each group home housed approximately five residents on average (‘former cottage residents’). It is my understanding that [the Childrens’ Cottages Kew] was not succeeded by an institution.
The investigations of the plaintiff’s solicitor revealed the following information:
From its inception in the mid-19th century the [Childrens’ Cottages Kew] was a residential institution for children with intellectual disabilities. [The Childrens’ Cottages Kew] was disaffiliated in 2008 and appears to have no discernible successor organisation. [The Childrens’ Cottages Kew] has not continued its operations under a changed name; the [Childrens’ Cottages Kew] was not taken over by any successor body; its physical amenities were taken over by the Victorian Government and the Kew site developed for commercial purposes after 2008.
When the [Childrens’ Cottages Kew] closed in 2008 the cottage residents were largely relocated from the site, 363 being resettled in group homes elsewhere, and other residents were located to 20 group [homes] on the site under the auspices of the Department of Health and Human [Services].
The [Childrens’ Cottages Kew] on the investigations of the applicant never at any time had a discrete governing constitution. The [Childrens’ Cottages Kew] was established in about 1887 and operated under the provisions of the Lunacy Act 1890, relating to public asylums, or cottage or other accommodation for paying patients …
In 1962 [the Childrens’ Cottages Kew] was proclaimed as a training centre under the Mental Health Act 1959. That Act provided that any such training centre must not contain persons or residents except those who were mentally defective … The investigations of the applicant indicate that no remaining training centres under that Act remain in existence.
[The Childrens’ Cottages Kew] closed in 2005 … It would appear there was no statute formally disbanding the [Childrens’ Cottages Kew], or establishing any successor body.
Courts are inclined to find intent to create a charitable trust whenever a donor has gifted property to an association with an intention, whether express or inferred, that the property be used for charitable purposes.[1] Gifts to hospitals and other healthcare organisations have long been held to be gifts for a charitable purpose.[2]
[1]G E Dal Pont, Law of Charity (LexisNexis Butterworths, 2nd ed, 2017) [17.7].
[2]See, eg, In Re Resch’s Will Trusts [1969] 1 AC 514, 540; Toose v Couch, (Unreported, Supreme Court of New South Wales, Young J, 6 May 1988); Public Trustee of Queensland v A-G (Qld) [2009] QSC 353 (7 October 2009) [8]; Australian Executor Trustees Ltd v A-G (SA) (2010) 7 ASTLR 83, [1].
In the case of paragraph 3(b), the subject matter and objects of the trust are clear, being one half of the residuary estate and the Childrens’ Cottages Kew respectively.
The certainty of the deceased’s intent to create a charitable trust is readily inferred by the words used in the will, that is, the ‘remaining half’ of his residuary estate be held ‘on trust’ for the Childrens’ Cottages Kew ‘absolutely to be used for the benefit of the residents therein’.
Accordingly, the Court is satisfied that the gift in paragraph 3(b) of the deceased’s will created a valid charitable trust.
Question 2: Are the purposes of the trust capable of being applied in accordance with the direction contained in paragraph 3(b) of the will?
Where a beneficiary has ceased to exist at the date of death of the deceased person, the prima facie rule is that the gift to that beneficiary will lapse. The Childrens’ Cottages Kew was closed in 2008 and was not succeeded by any institution. As the Childrens’ Cottages Kew did not exist at the death of the deceased, the gift in paragraph 3(b) has lapsed.
Question 3: Can the purposes of the trusts created by paragraph 3(b) of the will be applied cy-près?
In some circumstances, the prima facie rule will not apply and certain exceptions may save the gift, particularly where the gift has been made to charitable organisations. The relevant principles are set out in Re Tyrie (No 1) where Newton J stated:
(1) A gift by will to a particular charitable institution simpliciter must be treated as a gift for the advancement of the charitable work or purposes of that institution …
(2) Nevertheless, a gift by will to a particular charitable institution (which I shall call ‘the named institution’), which at some time existed, but had ceased to do so in the testator’s lifetime, whether before or after the date of his will, ordinarily lapses … The reason for this general rule appears to be that by designating the named institution as the donee the testator has prima facie at least demonstrated an intention that the charitable work or purposes which he wishes to benefit are to be benefited through the instrumentality of the named institution and in no other manner … For convenience I shall hereafter refer to this rule as ‘the lapse rule’.
(3) To the lapse rule there are the following three exceptions, so far as material for present purposes:
(A)If at the testator’s death there is in existence another institution which has taken over the work previously carried on by the named institution and which can properly be regarded as the successor of the named institution, and if the dominant charitable intention of the testator was wide enough to allow the gift to take effect in favour of that successor institution, then the gift will take effect in favour of the successor institution …
(B) If upon the true interpretation of the will the testator intended that the gift should operate simply as an accretion to the assets of the named institution so as to become subject to whatever charitable trusts were from time to time applicable to those assets, and if after the named institution itself ceased to exist its assets remained subject to charitable trusts which were still on foot at the testator’s death, then the gift will be treated as taking effect as an accretion to any property which was at his death subject to those trusts …
(C)If in cases not falling within exceptions (A) or (B), the testator is nevertheless found upon the proper interpretation of the will to have had a dominant intention to benefit work or purposes of the kind which the named institution carried out, notwithstanding that the named institution itself might no longer exist at his death, and if it is practicable as at the death of the testator to apply the gift for the benefit of work or purposes of that kind, and in a way which is in all respects consistent with any other elements of the dominant intention of the testator (or to put it in another way, consistent with any indispensable or essential elements of his charitable intention), then the gift will be so applied by means of a cy-près scheme. This is simply one aspect of the cy-près principle …[3]
[3][1972] VR 168, 177–8 (citations omitted).
In the case of the gift in paragraph 3(b) exceptions (A) and (B) do not apply. However, where it is found that the will evinces a general charitable intention, exception (C) applies and the lapsed gift may be applied cy-près. In Re Tyrie (No 1), Newton J suggested that exception (C) might not apply where the gift is to a named institution simpliciter. There has also been the suggestion that a general charitable intention is more difficult to find where the named charitable institution previously existed as opposed where the named charitable institution never existed at all.[4] However,
in A-G (NSW) v Public Trustee, the New South Wales Court of Appeal disavowed a general rule against finding a general charitable intention where the gift is to a named charitable institution that once existed.[5] There, a general charitable intention was found where a gift had been made to a named institution simpliciter, and the institution had previously existed. The gift was administered cy-près. Thus, exception (C) is therefore available in such cases, and in respect to the gift in paragraph 3(b) of the deceased’s will.
[4]G E Dal Pont, Law of Charity (LexisNexis Butterworths, 2nd ed, 2017) [15.68]–[15.69].
[5](1987) 8 NSWLR 550, 553–4.
Subsequent to Re Tyrie (No 1), the Charities Act 1978 was enacted. Section 2(1)(a)(ii) of the Act provides as follows:
2 Occasions for applying property cy près
Subject to subsection (2), the circumstances in which the original purposes of a charitable gift can be altered to allow the property given or part of it to be applied cy près shall be as follows —
where the original purposes, in whole or in part —
…
(ii) cannot be carried out, or not according to the directions given and to the spirit of the gift; or …
Section 2(2) states that the common law requirement of a general charitable intention is still required in order to apply a gift cy-près.
In A-G (NSW) v Perpetual Trustee Co (Ltd), Dixon and Evatt JJ stated:
the court leans, it is said, in favour of charity, and is ready to infer a general intention. But little is therefore required as a ground for treating a wider purpose as the essential object of the trust’.[6]
[6](1940) 63 CLR 209, 228; see also A-G (NSW) v Public Trustee (1987) 8 NSWLR 550, 554–5.
The plaintiff submitted that ‘the relief of the impotent’ is a charitable purpose if public benefit is present and, consequently, gifts for the relief of persons who suffer some disability or sickness are valid charitable gifts.[7]
[7]Citing Re Smith’s Will Trusts [1962] 2 All ER 563.
The plaintiff submitted that both the Salvation Army Property Trust and Childrens’ Cottages Kew carry out charitable activities, specifically the relief of poverty and support of the mentally infirm and that paragraph 3 of the will largely leaves the administration and implementation of the gifts to the beneficiaries, which is evidence of a general charitable intention.
The plaintiff submitted that the paramount consideration in the deceased’s mind must have been to see his estate applied for charitable purposes, and not to benefit distant relatives. Further, the plaintiff noted that there is no gift over of the residuary estate in the will.
As set out by Newton J in Re Tyrie (No 1), ‘[a] gift by will to a particular charitable institution simpliciter must be treated as a gift for the advancement of the charitable work or purposes of that institution’.
There are a number of factors that support a finding that paragraph 3(b) of the will evinces a general charitable intention to benefit the kind of work carried out by Childrens’ Cottages Kew, rather than to a particular charitable intention.[8]
First, the deceased’s intention in paragraph 3 of the will was to apply the residue of his estate to two charitable organisations. Secondly, specifically paragraph 3(b) does not contain a gift over to another entity should the initial gift fail. Thirdly, the deceased did not place any limitations on the purposes to which the gift in paragraph 3(b) may be put, stating a general charitable purpose in that the gift was ‘to be used for the benefit of the residents therein’.
[8]See Re Coulson [2014] VSC 353 (1 August 2014) [75]. Cf Melba Support Services Inc v Bell [2014] VSC 425 (9 September 2014) [68].
These factors support the conclusion that the gift in paragraph 3(b) of the will was for a charitable purpose and the deceased’s intention was to benefit the purposes of the Childrens’ Cottages Kew. Although that entity has ceased to exist, the gift is saved by exception (C) in Re Tyrie (No 1) and may be applied cy-près.
Accordingly, the Court answers question 3 is ‘Yes’.
Question 4: What body or institution should be the means of carrying out the purposes of the trust created by paragraph 3(b) of the deceased’s will cy-près?
In her affidavit sworn 20 June 2017, the plaintiff identified an organisation called Woodbine Inc. that is in existence and has similar purposes to the Childrens’ Cottages Kew.
The relevant section of the plaintiff’s affidavit is set out as follows:
10.My solicitors then undertook further research to establish whether there were any organisations similar to the Childrens’ Cottages Kew. They found an organisation in rural Victoria called Woodbine and spoke with Bernie O’Connor. He advised that his organisation is a non for profit organisation which runs programs for people with a disability. He advised as follows:
(a) there is a residential service;
(b)the service provides fully supported accommodation with four houses in Warracknabeal and one in Echuca and in addition provides outreach support for people living in housing with assistance with banking and supported daily living in non-residential accommodation together with assistance in programs in numeracy and literacy.
In her supplementary affidavit sworn 9 July 2018, the plaintiff identified four other organisations currently in existence that are also similar in purpose to the Childrens’ Cottages Kew as follows:
18.1 Scope
Scope is a not-for-profit organisation that exists to support people with physical, intellectual and multiple disabilities achieve their goals in life. Their services help more than 6000 individuals and their families across Victoria. They provide support at home, school, in the community or at one of their 108 service locations. Scope’s mission is to enable each person they support to live as an empowered and equal citizen; …
18.2 The Tipping Foundation
The Tipping Foundation is one of Victoria’s most established not-for-profit providers of disability and community services for people with disability, and for young people who are vulnerable. Their organisation was established in 1970 in honour of Edmond William ‘Bill’ Tipping, a prominent Melbourne journalist, social commentator and disability advocate. The Tipping Foundation has grown to be one of the largest providers of services to people with a disability and young people who are vulnerable in Victoria. They employ around 1300 staff who work with, and support, people with disability and their families and carers across Victoria. The services they provide are focused on each individual client and their needs and goals, whether through disability services in their homes, residential accommodation, respite, or community access. The Tipping Foundation is also a provider of services for the National Disability Insurance Scheme (NDIS); …
18.3 Alliance for Forgotten Australians
The Alliance for Forgotten Australians (AFA), formed in 2006, is an organisation which promotes the interests of the estimated 500,000 people known as Forgotten Australians, who experienced institutional or other out-of-home care as children and young people in the last century in Australia, many of whom suffered physical, emotional and/or sexual abuse while in ‘care’. The AFA is committed to recognition and healing for Forgotten Australians and encourages their active engagement in the development of policy and services which are person centred and strengths-based and which create opportunities and pathways that improve the lives of Forgotten Australians; …
18.4 Open Place
Open Place is a support and advocacy service that co-ordinates and provides direct assistance to address the needs of people who grew up in Victorian orphanages and homes during the last century. They aim to help people who identify as Forgotten Australians to deal with the legacy of their childhood experiences and provide support to improve their health and well-being. Open Place is for all Victorian Forgotten Australians, irrespective of where they reside now. The majority of support services are for Forgotten Australians themselves, with some support provided to members of their immediate family. Open Place provides personal support, support in accessing specialist services, financial assistance and individual advocacy …
18.5 Woodbine Inc
Woodbine Inc is the organisation that is referred to in paragraph 10 of my first affidavit
Copies of Woodbine’s 2013-14 Annual Report, Scope’s 2016-17 Annual Report, Tipping Foundation’s 2017 Annual Report, an Alliance for Forgotten Australians information booklet and the Open Place’s 2016 ‘Hope’ Publication were exhibited in to the respective affidavits filed in the proceeding.
In her affidavit sworn 12 July 2017, Ms Shauna Walter, on behalf of the East Division of DHHS, addressed the following three questions, as posed by the plaintiff:
a.whether [the Childrens’ Cottages Kew] no longer exists and if so, whether there is an institution that is a successor to the [Childrens’ Cottages Kew];
b.whether [DHHS] accepts bequests and if so, whether the bequests can be utilised for the residence which currently exists on the site of the former [Childrens’ Cottages Kew]; and
c.if [DHHS] is unable to use the bequests for the current residences on the site of the former [Childrens’ Cottages Kew], whether it may use the bequests for organisations serving people with disabilities.
Ms Walter’s response to question (a) is reproduced above at [9]. Her responses to questions (b) and (c) are as follows:
Bequests to [DHHS]
[DHHS] may accept bequests distributed under a Will of a deceased individual and has accepted such bequests on previous occasions. In the event that a bequest is made to [DHHS], it is possible for funds bequeathed to be applied for the benefit of the former cottage residents. It is anticipated that it would be difficult to determine the appropriate manner in which the bequeathed funds should be applied for each former cottage resident and the amounts to be distributed amongst the residents.
[DHHS] has accepted a bequest in circumstances where the bequest was not able to be made to a residential institution which had closed down and where the replacement service model for the closed institution was determined to be the closest equivalent and more appropriate beneficiary of the bequest. In those circumstances, a trust fund was established by [DHHS] in which the bequeathed funds were deposited and were applied for ‘the advancement of people with a disability’. [DHHS] considers that a trust fund on similar terms may be considered, if appropriate in the present case.
[DHHS] may allocate any funds bequeathed to individuals with a disability or organisations which provide services to individuals with a disability. I refer to the Psychiatric Illness and Intellectual Disabilities Donations Trust Fund (‘PIIDDTF’) discussed below.
The Psychiatric Illness and Intellectual Disabilities Donations Trust Fund
The Psychiatric Illness and Intellectual Disabilities Donations Trust Fund (‘PIIDDTF’) is a set of charitable bequests and donations managed by the State Trustees Limited on behalf of [DHHS]. The PIIDDTF was established for the purposes of receiving bequests made to institutions or services which no longer exist in relation to two components: psychiatric illness and the intellectual disability.
As part of its intellectual disability component, the PIIDDTF includes the Disability Donations Trust (‘the DD Trust’) . The DD Trust provides grants to people with an intellectual disability to assist in meeting needs related to their disability. These funds are held and invested by the State Trustees Limited and are distributed on the recommendation of the Department’s Recommending Committee. The Recommending Committee is responsible for considering all grant applications on a biannual cycle and for ensuring that funding grants are distributed in an equitable manner as consistent as possible with original instructions. As the DD Trust is a charitable fund, grants must not be applied for any purpose which is considered the normal responsibility of government or a government-funded program.
The DD Trust consists of eight sub-accounts comprising of funds which accept grant applications from either individuals, organisations or both. These funds [are] outlined in turn below.
Grants for individuals
The only bequests and donations of the DD Trust which [are] currently available to individuals are under the following six funds:
a.The General Account, for the benefit of children with an intellectual disability;
b. Bruce Bowman Pearce Bequest, for use of holidays and other recreational purposes for children with an intellectual disability who are clients of disability services provided by the Victorian government;
c.Florence Stella Bennett Bequest, for the benefit of current residents of residential institutions;
d.St Nicholas’ Hospital Bequest, for the benefit of former residents of St Nicholas’ Hospital;
e.Herbert Allen Bequest, for use for bus excursions for children with an intellectual disability between the ages of eight and eighteen (can be given to individuals or organisations); and
f.the Australian Bicentennial Grant fund, for the benefit of ex-residents of residential institutions and clients of disability services provided by the Victorian government. It is my understanding that this fund it not offering any grants at present time.
In these circumstances, if a bequest is made to the PIIDDTF, it is [DHHS]’s view that the General Account fund would be the most appropriate fund on the basis that the fund is for the benefit of children with an intellectual disability. …
Grants for organisations
The DD Trust also includes a General Research Grant fund which accepts grant applications from organisations for research projects to benefit children and young people, up to 19 years of age, with an intellectual disability. However, I understand that this fund is not currently issuing any grants. The 2013-2014 guidelines for applications to the General Research Grant fund are currently under review and it is anticipated that they will be superseded by new guidelines to be issued for the next round of grant applications.
Grants for individuals and organisations
The Herbert Allen Bequest fund accepts grant applications from individuals and organisations. Grants issued are limited to $1,000 and are available to organisations to provide bus excursions to children aged eight to eighteen with an intellectual disability.
Disability service providers applying to the Herbert Allen Bequest fund must meet one of the following requirements:
a.be a service provider listed on either [DHHS]’s register of disability service providers or the National Disability Insurance Scheme’s list of registered service providers for Victoria; or
b.be a Specialist School, registered with the Victorian Registration and Qualifications Authority.
The plaintiff proposed that the gift to Childrens’ Cottages, Kew be applied cy-près in equal portions to Scope, the Tipping Foundation and Woodbine Inc. The plaintiff noted that all three organisations provide residential and other services to the disabled and submitted that the gift be paid for the general purposes of those institutions.
By letter dated 9 October 2018, the Victorian Government Solicitor’s Office advised that the Attorney-General did not oppose that the gift to the Childrens’ Cottages Kew be applied cy-près in equal portions to Scope, the Tipping Foundation and Woodbine Inc.
While all of the entities referred to in the affidavits provide services that assist the needs of people suffering from disabilities and mental health issues, the three entities proposed by the plaintiff appear to be the most closely aligned to the purposes of the Childrens’ Cottages Kew in that they provide residential and other services to the disabled and have similar purposes to the trust created by paragraph 3(b) of the deceased’s will.
Accordingly, the answer to question 4 is that the gift to the Childrens’ Cottages Kew be applied cy-près in equal portions to Scope, the Tipping Foundation and Woodbine Inc.
In view of the answers to questions 1 to 4, it is unnecessary to answer questions 5 to 7.
Answers to the questions
The Court answers the questions in the originating motion as follows:
Question 1:
Does the gift in paragraph 3(b) of the will create a valid charitable trust?
Answer:
Yes.
Question 2:
Are the purposes of the trust capable of being applied in accordance with the direction contained in paragraph 3(b) of the will?
Answer:
No.
Question 3:
Can the purposes of the trusts created by paragraph 3(b) of the will be applied cy-près?
Answer:
Yes.
Question 4:
What body or institution should be the means of carrying out the purposes of the trust created by paragraph 3(b) of the deceased’s will cy-près?
Answer:
The gift to the Childrens’ Cottages Kew be applied cy-près in equal portions to Scope, the Tipping Foundation and Woodbine Inc.
Question 5:
If the words of paragraph 3(b) do not create a valid charitable trust, does the gift to the Childrens’ Cottages Kew lapse?
Answer:
Unnecessary to answer.
Question 6:
If the gift to the Childrens’ Cottages Kew has lapsed, can the lapsed gift be paid to DHHS or the Salvation Army Victoria Property Trust?
Answer:
Unnecessary to answer.
Question 7:
If the answer to question 6 herein is ‘No’, who is entitled to the one-half of the deceased’s residuary estate dealt with by the paragraph 3(b) of the deceased’s will?
Answer:
Unnecessary to answer.
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