Re Graham (deceased) (No 2) - [2020] QSC 168

SUPREME COURT OF QUEENSLAND

CITATION:

Re Graham (deceased) (No 2) [2020] QSC 168

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:

11 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2020

JUDGE:

Bowskill J

ORDER:

In relation to the gift under clause 4.3(2) of the will of the deceased, an order will be made permitting the gift to be applied cy pres and distributed to Synapse Australia Ltd (as to 45%), the National Stroke Foundation Ltd (as to 45%) and the Stroke Trial Recovery Fund Ltd (as to 10%). I will hear the parties as to the proper form of the order, and also as to costs.

CATCHWORDS:

CHARITIES – CHARITABLE GIFTS AND TRUSTS – WHEN APPLIED CY-PRES – FAILURE OR EXTINCTION OF OBJECT – WHERE GIFT APPLIED CY-PRES – INSTITUTION CEASING TO EXIST BETWEEN TESTATOR’S DEATH AND PAYMENT OF LEGACY – 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 ceased to exist, making it impossible to distribute the gift according to the express terms of the will – where the Court has previously determined that the gift under the will is not to be read and construed as a gift to another entity, Synapse Australia Ltd, as the successor of the Stroke Association of Queensland Inc – determination of how the gift should be applied, cy pres, pursuant to s 105 of the Trusts Act 1973 (Qld)

Trusts Act 1973 (Qld), s 105

Hicks v Mater Misericordiae Ltd [2017] QSC 38; (2017) 16 ASTLR 441
McCormack v Stevens [1978] 2 NSWLR 517
Public Trustee of Queensland v Rutledge & Ors [2010] QSC 379
Re Tyrie (deceased) (No 1) [1972] VR 168

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 & Philp 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 a will dated 2 May 2015. Probate of the will was granted to the applicant on 9 August 2017. After legacies and gifts of chattels, clause 4.3 of the will provides for the residue of the estate to be distributed as follows:
“(1)one half to the National Heart Foundation of Australia (Queensland Division) … for its general purposes …; and
(2) one half to the Stroke Association of Queensland Inc ……

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) (No 2)

Details

AGLC: Re Graham (deceased) (No 2) [2020] QSC 168
Case: [2020] QSC 168
Decision Date: 11 June 2020

CaseChat Overview and Summary

In the case concerning the estate of Graham, deceased, the matter under consideration was the distribution of a charitable bequest from the testator's will. The bequest was intended for the Stroke Association of Queensland Inc, which ceased to exist between the testator's death and the distribution of the estate. The primary issue before the court was how to apply the bequest cy-pres, as provided for under section 105 of the Trusts Act 1973 (Qld), when the intended beneficiary no longer exists.

The court had to determine the appropriate application of the bequest in light of the testator's intent and the legislative framework. The court found that the bequest was not to be read and construed as a gift to Synapse Australia Ltd, which was considered the successor of the Stroke Association of Queensland Inc. Instead, the court needed to identify suitable alternative beneficiaries who could carry out the charitable purpose intended by the testator. The court examined the charitable purposes of potential beneficiaries and their alignment with the original intent of the bequest. Following this examination, the court concluded that the bequest should be applied cy-pres and distributed among Synapse Australia Ltd, the National Stroke Foundation Ltd, and the Stroke Trial Recovery Fund Ltd.

The court ordered that the gift under clause 4.3(2) of the deceased's will be applied cy pres and distributed as follows: 45% to Synapse Australia Ltd, 45% to the National Stroke Foundation Ltd, and 10% to the Stroke Trial Recovery Fund Ltd. The court will hear further submissions from the parties regarding the proper form of the order and the allocation of costs.

Orders

Orders of the court

In relation to the gift under clause 4.3(2) of the will of the deceased, an order will be made permitting the gift to be applied cy pres and distributed to Synapse Australia Ltd (as to 45%), the National Stroke Foundation Ltd (as to 45%) and the Stroke Trial Recovery Fund Ltd (as to 10%). I will hear the parties as to the proper form of the order, and also as to costs.

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) (No 2) [2020] QSC 168
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:	11 June 2020
DELIVERED AT:	Brisbane
HEARING DATE:	18 May 2020
JUDGE:	Bowskill J
ORDER:	In relation to the gift under clause 4.3(2) of the will of the deceased, an order will be made permitting the gift to be applied cy pres and distributed to Synapse Australia Ltd (as to 45%), the National Stroke Foundation Ltd (as to 45%) and the Stroke Trial Recovery Fund Ltd (as to 10%). I will hear the parties as to the proper form of the order, and also as to costs.
CATCHWORDS:	CHARITIES – CHARITABLE GIFTS AND TRUSTS – WHEN APPLIED CY-PRES – FAILURE OR EXTINCTION OF OBJECT – WHERE GIFT APPLIED CY-PRES – INSTITUTION CEASING TO EXIST BETWEEN TESTATOR’S DEATH AND PAYMENT OF LEGACY – 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 ceased to exist, making it impossible to distribute the gift according to the express terms of the will – where the Court has previously determined that the gift under the will is not to be read and construed as a gift to another entity, Synapse Australia Ltd, as the successor of the Stroke Association of Queensland Inc – determination of how the gift should be applied, cy pres, pursuant to s 105 of the Trusts Act 1973 (Qld) Trusts Act 1973 (Qld), s 105 Hicks v Mater Misericordiae Ltd [2017] QSC 38; (2017) 16 ASTLR 441 McCormack v Stevens [1978] 2 NSWLR 517 Public Trustee of Queensland v Rutledge & Ors [2010] QSC 379 Re Tyrie (deceased) (No 1) [1972] VR 168
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 & Philp Lawyers for Synapse Australia Ltd Arnold Bloch Leibler for National Stroke Association Macdonald Law for Stroke Recovery Trial Fund Ltd