| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S CI 2016 03975
IN THE MATTER of the will of JOYCE MARY HATFIELD MARKS (also known as JOYCE MARY MARKS), deceased
-and-
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…
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- [2017] VSC 665
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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