Re Estate of Pitt - [2002] SASC 332

IN THE ESTATE OF LOUIE BEATRICE PITT (DECEASED);
ASTON v MOUNT GAMBIER PRESBYTERIAN CHARGE INCORPORATED & ORS
[2002] SASC 332
Civil

DUGGAN J. An executor under the will of Louie Beatrice Pitt (the testatrix) has applied pursuant to SCR r 63 for the determination of certain questions arising on the administration of the estate of the testatrix.
The testatrix died on 25 June 1999 and probate of her will was granted on 3 December 1999. She left an estate valued at approximately $377,608.00.
In her will dated 22 April 1991 the testatrix bequeathed a sum of $5000 to the Moorak Hall. She then directed in clause 3 of the will that the residuary estate be held upon trust –
“(a)   as to sixteen thirty-ninths thereof for the PRINCE ALFRED COLLEGE FOUNDATION of Kent Town Norwood in the said State; and
(b)     as to sixteen thirty-ninths thereof for SCOT’S PRESBYTERIAN CHURCH BUILDING FUND of Mount Gambier East aforesaid; and
(c)     as to one thirty-ninth thereof for THE MOORAK UNION CHURCH INCORPORATED; and
(d)     at to one thirty-ninth thereof for THE MOUNT GAMBIER BRANCH of THE ANIMAL WELFARE LEAGUE ; and
(e)     as to one thirty-ninth thereof for my niece GEORGETTE CALLOW of Manjimup in the State of Western Australia; and
(f)     as to one thirty-ninth thereof for MARY EILEEN ANDERSON of Attamurra Road Mount Gambier aforesaid Married Woman; and
(g)     as to one thirty-ninth thereof for VICKI IRIS O’DONNELL of Casterton in the State of Victoria Married Woman ; and
(h)     as to one thirty-ninth thereof for IRIS PESKETT of Casterton aforesaid Married Woman; and
(i)     as to one thirty-ninth thereof for DALE ELIZABETH BARRETT of 2 Pressey Street Mount Gambier aforesaid.”
Clause 4 of the will is in the following terms:
“I DIRECT that on the failure of the trusts of any of the abovementioned shares in the residue of my estate the share or shares whereof the trusts so fail shall be added to the other shares in the residue of my estate in equal shares and be subject to the same trusts as apply to such original shares.”
The present application has been brought because of a difficulty associated with the gift to the “Scot’s Presbyterian Church Building Fund of Mount Gambier”. There has never been an entity or fund of that name in existence. However, it is the contention of the Mount Gambier Presbyterian Charge Incorporated (the Charge), that the testatrix intended that her bequest would go to the Presbyterian church in Mount Gambier and be used for building purposes. If this construction is not open, the Charge contends that a dominant charitable intention is to be inferred from all the circumstances and that the gift does not lapse because there is a successor institution. The further alternative urged by the Charge is that the circumstances permit the operation of the cy-prés doctrine at general law or the application of the trust variation powers contained in s 69B of the Trustee Act, 1936 (the Act).

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.

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Details

Case: [2002] SASC 332
Decision Date: 9 October 2002

CaseChat Overview and Summary

The applicant in this case sought the determination of certain questions arising on the administration of the estate of the deceased, Louie Beatrice Pitt. The primary issue was whether the bequest made by the deceased to the "Scot's Presbyterian Church Building Fund of Mount Gambier" could be enforced, given that such a fund did not exist at the time of her death. The Mount Gambier Presbyterian Charge Incorporated contended that the deceased's intention was to benefit the Presbyterian church in Mount Gambier for building purposes, and argued that either the cy-près doctrine or the trust variation powers under s 69B of the Trustee Act 1936 should apply.

The court found that the gift to the Scot's Presbyterian Church Building Fund must lapse as the fund did not exist at the time of the deceased's death. The court examined the exceptions to the general rule of lapse in charitable gifts, specifically focusing on the possibility of applying the cy-près doctrine or the trust variation powers under s 69B of the Trustee Act 1936. The court concluded that a general charitable intention existed, and that the gift could be applied cy-près or varied pursuant to the statutory power. The court found that the statutory power was the more appropriate solution in this case, as the requirements for employing the cy-près doctrine were more demanding than those under the Act.

The court decided to provide an opportunity for a proposed trust variation scheme pursuant to s 69B of the Act to be brought into court for consideration. The final orders of the court would depend on the outcome of this process.

Orders