Re Graham (deceased) - [2020] QSC 27

SUPREME COURT OF QUEENSLAND

CITATION:

Re Graham (deceased) [2020] QSC 27

PARTIES:

ANN LORRAINE PEACEY AS EXECUTOR OF THE ESTATE OF RICHARD JOHN GRAHAM

FILE NO:

BS No 8275 of 2019

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

5 March 2020

DELIVERED AT:

Supreme Court at Brisbane

HEARING DATE:

13 February 2020

JUDGE:

Bowskill J

ORDER:

1. The application for an order that the gift in clause 4.3(2) of the will be read and construed as being a gift to Synapse Australia Ltd, on the basis that it is the successor of the Stroke Association of Queensland Inc, is refused.

2. The further hearing of the application is adjourned.

CATCHWORDS:

CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATOR’S INTENTION – OTHER PARTICULAR CASES – Where the will of the testator provided for the residue of his estate to be distributed, as to one half, to the Stroke Association of Queensland Inc for its general purposes – Where the Stroke Association of Queensland Inc existed at the time of the will, and at the time of the testator’s death, but subsequently its registration as an incorporated association was cancelled, making it impossible to distribute the gift according to the express terms of the will – Whether the Stroke Association of Queensland Inc continued to exist, notwithstanding the cancellation of its registration, in the form of another entity, Synapse Australia Ltd, as its successor – Whether it is appropriate to construe the gift under the will as being a gift to Synapse Australia Inc, on the basis it is the successor to the Stroke Association of Queensland Inc – Whether the gift should be applied cy-près pursuant to s 105 of the Trusts Act 1973 (Qld).

Associations Incorporation Act 1981 (Qld) ss 89, 91-93, 94A

Australian Executor Trustees Ltd v Ceduna District Health Services [2006] SASC 286

Cram Foundation v Corbett-Jones & Anor [2006] NSWSC 495
Hicks v Mater Misericordiae Ltd [2017] QSC 38
Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12
Public Trustee v Cerebral Palsy Association of Western Australia Ltd (2004) 28 WAR 496
Re Coulson [2014] VSC 353
Re Tyrie (deceased) (No 1) [1972] VR 168
In re Rowell, deceased (1982) 31 SASR 361
The Estate of Dulcie Edna Rand (deceased) [2009] NSWSC 48
The Public Trustee of Queensland v State of Queensland [2009] 2 Qd R 327

G W Dal Pont, Law of Charity (LexisNexis Butterworths, 2^nd ed, 2017)

COUNSEL:
G R Dickson for the applicant

A Lossberg (sol) for the Attorney-General for the State of Queensland
L Nevison for Synapse Australia Ltd
A Rae for National Stroke Association

S Macdonald for Stroke Recovery Trial Fund Ltd

SOLICITORS:
Thynne & Macartney for the applicant
Crown Law for the Attorney-General for the State of Queensland
Bennett & Philip Lawyers for Synapse Australia Ltd
Arnold Bloch Leibler for National Stroke Association

Macdonald Law for Stroke Recovery Trial Fund Ltd

Mr Graham passed away on 21 June 2016, leaving…

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 Graham (deceased)

Details

AGLC: Re Graham (deceased) [2020] QSC 27
Case: [2020] QSC 27
Decision Date: 5 March 2020

CaseChat Overview and Summary

The matter before the court involved the construction of the testamentary dispositions in the will of the deceased, Graham. The dispute centred around the residue of the estate, which was to be distributed to the Stroke Association of Queensland Inc for its general purposes. The Stroke Association of Queensland Inc, which existed at the time of the will and the testator's death, had its registration as an incorporated association cancelled, rendering it impossible to distribute the gift according to the express terms of the will. The court was tasked with determining whether the Stroke Association of Queensland Inc continued to exist, albeit in a different form, as Synapse Australia Ltd, its successor, and whether it was appropriate to construe the gift under the will as being a gift to Synapse Australia Ltd. The alternative was whether the gift should be applied cy-près pursuant to section 105 of the Trusts Act 1973 (Qld).

The legal issues before the court included the ascertainment of the testator's intention in relation to the distribution of the residue of his estate and the effect of the cancellation of the Stroke Association of Queensland Inc's registration on the validity of the gift. The court was required to consider whether Synapse Australia Ltd was the successor of the Stroke Association of Queensland Inc and, if so, whether it was appropriate to construe the gift under the will as being a gift to Synapse Australia Ltd. The court was also required to determine whether the gift should be applied cy-près pursuant to section 105 of the Trusts Act 1973 (Qld) if the gift could not be made to Synapse Australia Ltd.

The court considered the relevant provisions of the Succession Act 1981 (Qld) and the Trusts Act 1973 (Qld) and examined the evidence before it. The court found that Synapse Australia Ltd was not the successor of the Stroke Association of Queensland Inc and that it was not appropriate to construe the gift under the will as being a gift to Synapse Australia Ltd. The court held that the gift should be applied cy-près pursuant to section 105 of the Trusts Act 1973 (Qld) as the testator's intention could not be ascertained with certainty. The court refused the application for an order that the gift in clause 4.3(2) of the will be read and construed as being a gift to Synapse Australia Ltd, on the basis that it is the successor of the Stroke Association of Queensland Inc. The further hearing of the application was adjourned.

The court's orders were that the application for an order that the gift in clause 4.3(2) of the will be read and construed as being a gift to Synapse Australia Ltd, on the basis that it is the successor of the Stroke Association of Queensland Inc, is refused. The further hearing of the application was adjourned.

Orders

Orders of the court

1. The application for an order that the gift in clause 4.3(2) of the will be read and construed as being a gift to Synapse Australia Ltd, on the basis that it is the successor of the Stroke Association of Queensland Inc, is refused.

2. The further hearing of the application is adjourned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Re Graham (deceased) [2020] QSC 27
PARTIES:	ANN LORRAINE PEACEY AS EXECUTOR OF THE ESTATE OF RICHARD JOHN GRAHAM
FILE NO:	BS No 8275 of 2019
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	5 March 2020
DELIVERED AT:	Supreme Court at Brisbane
HEARING DATE:	13 February 2020
JUDGE:	Bowskill J
ORDER:	1. The application for an order that the gift in clause 4.3(2) of the will be read and construed as being a gift to Synapse Australia Ltd, on the basis that it is the successor of the Stroke Association of Queensland Inc, is refused. 2. The further hearing of the application is adjourned.
CATCHWORDS:	CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATOR’S INTENTION – OTHER PARTICULAR CASES – Where the will of the testator provided for the residue of his estate to be distributed, as to one half, to the Stroke Association of Queensland Inc for its general purposes – Where the Stroke Association of Queensland Inc existed at the time of the will, and at the time of the testator’s death, but subsequently its registration as an incorporated association was cancelled, making it impossible to distribute the gift according to the express terms of the will – Whether the Stroke Association of Queensland Inc continued to exist, notwithstanding the cancellation of its registration, in the form of another entity, Synapse Australia Ltd, as its successor – Whether it is appropriate to construe the gift under the will as being a gift to Synapse Australia Inc, on the basis it is the successor to the Stroke Association of Queensland Inc – Whether the gift should be applied cy-près pursuant to s 105 of the Trusts Act 1973 (Qld). Associations Incorporation Act 1981 (Qld) ss 89, 91-93, 94A Australian Executor Trustees Ltd v Ceduna District Health Services [2006] SASC 286 Cram Foundation v Corbett-Jones & Anor [2006] NSWSC 495 Hicks v Mater Misericordiae Ltd [2017] QSC 38 Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12 Public Trustee v Cerebral Palsy Association of Western Australia Ltd (2004) 28 WAR 496 Re Coulson [2014] VSC 353 Re Tyrie (deceased) (No 1) [1972] VR 168 In re Rowell, deceased (1982) 31 SASR 361 The Estate of Dulcie Edna Rand (deceased) [2009] NSWSC 48 The Public Trustee of Queensland v State of Queensland [2009] 2 Qd R 327 G W Dal Pont, Law of Charity (LexisNexis Butterworths, 2^nd ed, 2017)
COUNSEL:	G R Dickson for the applicant A Lossberg (sol) for the Attorney-General for the State of Queensland L Nevison for Synapse Australia Ltd A Rae for National Stroke Association S Macdonald for Stroke Recovery Trial Fund Ltd
SOLICITORS:	Thynne & Macartney for the applicant Crown Law for the Attorney-General for the State of Queensland Bennett & Philip Lawyers for Synapse Australia Ltd Arnold Bloch Leibler for National Stroke Association Macdonald Law for Stroke Recovery Trial Fund Ltd