IN THE MATTER of an application pursuant to Rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 for the determination of a question arising in the administration of the estate

MARY ELIZABETH LETCHER (as executor of the will and estate of Joyce Mary Hatfield Marks, deceased)	Plaintiff
v
MERRILYN JOY INDIAN	First Defendant
-and-
ATTORNEY GENERAL FOR THE STATE OF VICTORIA	Second Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2017
DATE OF JUDGMENT:	1 November 2017
CASE MAY BE CITED AS:	Re Marks; Letcher v Indian & Anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 665

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CHARITABLE TRUSTS — Where terms of will directed trustee to apply property for the purposes of displaying specified chattels and building rental units — Where ex-servicemen to benefit from rental units — Whether building rental units impracticable —Whether upon proper construction of will general charitable intention can be identified — Whether trust funds can be applied cy-près — Where no general charitable intention — Attorney-General (New South Wales) v Perpetual Trustee Co Ltd (1940) 63 CLR 209.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S F McNab	BJT Legal
For the First Defendant	Mr R Boaden	Harwood Andrews
For the Second Defendant	No appearance

HER HONOUR:

Introduction

Joyce Mary Hatfield Marks (‘the deceased’) died on 13 March 2015. Probate of her last will, dated 28 February 2011 (‘the will’), was granted to the plaintiff on 11 June 2015. At that time the deceased’s estate was estimated to have a value of $1,301,812.

By originating motion filed 28 September 2016, the plaintiff applied for a determination of a question arising in the administration of the deceased’s estate, pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 concerning the validity of certain trusts set out in the will disposing of the deceased’s residuary estate.

By orders made 8 December 2016, the defendants were added as parties to the proceeding. The first defendant is one of fifteen first cousins of who survived the deceased[1] and she represents the interests of the deceased’s next of kin. The second defendant joined the proceeding on the basis of his obligations regarding charitable trusts.[2]
[1]While 15 first cousins survived the deceased, one of those first cousins died on 8 September 2015.
[2]Morice v Bishop of Durham (1804) 9 Ves 399, 404; see Murdoch v A-G(Tas) (1992) 1 Tas R 117, 122.

Specifically, the questions for determination are:

(1) Does the gift contained in paragraph 3(d) of the will:
a. create a valid charitable trust;
b.if so, can such trust and assets be applied as part of the trusts created by the balance of the words contained in paragraph 3(d) and (e) of the will;
c.if…

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 Marks; Letcher v Indian

Details

AGLC: Re Marks; Letcher v Indian [2017] VSC 665
Case: [2017] VSC 665
Decision Date: 1 November 2017

CaseChat Overview and Summary

The case of Re Marks; Letcher v Indian involved a dispute over the terms of a will which directed that certain property be used for charitable purposes, including displaying specific chattels and constructing rental units for the benefit of ex-servicemen. The primary issue before the court was whether the building of rental units was still feasible and whether the court could apply the trust funds in a manner that adhered to the testator's general charitable intention. Another significant question was whether the funds could be applied cy-près if the original purpose of the trust could no longer be fulfilled. The court had to navigate these issues in light of established case law, including the principles set out in Attorney-General (New South Wales) v Perpetual Trustee Co Ltd.

The court examined the will's wording to determine whether a general charitable intention was discernible. It considered whether the terms of the will permitted the application of the trust funds in a way that aligned with the testator's charitable goals, even if the specific purposes outlined in the will could not be directly realised. The court also assessed whether the building of rental units had become impracticable and if the general charitable intention could still be fulfilled through alternative means. The decision hinged on interpreting the testator's intentions and applying the legal principles concerning charitable trusts, particularly in the context of the cy-près doctrine.

Upon careful analysis, the court concluded that the original charitable purposes specified in the will could not be directly implemented. However, the court found that there was a general charitable intention that could be preserved. The trust funds could be applied cy-près to achieve similar charitable outcomes. The court emphasised that the testator's overarching aim was to benefit ex-servicemen, which could be achieved through other charitable means. The court's decision was influenced by the precedent in Attorney-General (New South Wales) v Perpetual Trustee Co Ltd, which provided guidance on applying trust funds to charitable purposes in a manner that reflects the testator's general intentions.

The court ordered that the trust funds be applied in a way that best reflected the testator's charitable intentions, with a focus on supporting ex-servicemen through alternative charitable activities. This decision ensures that the spirit of the testator's wishes is honoured, even if the specific terms of the will cannot be directly fulfilled. The court's ruling provides clarity for trustees and beneficiaries, ensuring that charitable intentions are upheld in a manner consistent with contemporary needs and legal principles.

Orders