Re Niall

Case [2019] VSC 423 25 June 2019

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S ECI 2018 01009

IN THE MATTER of the Will and Estate of MICHAEL LLOYD NIALL, Deceased

-and-

IN AN APPLICATION pursuant to Order 54 of the Supreme Court (General Civil Procedure) Rules 2015

BETWEEN:

DANIEL LESLIE MINOGUE (as Executor of the Will and Estate of the said Deceased)	Plaintiff
-and-
ATTORNEY-GENERAL OF VICTORIA	First Defendant
-and-
DEIRDRE ANN MAGNEY	Second Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2019
DATE OF JUDGMENT:	25 June 2019
CASE MAY BE CITED AS:	Re Niall
MEDIUM NEUTRAL CITATION:	[2019] VSC 423

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WILLS — Charitable gift — Gift for alleviation of poverty in India — Where no body or organisation matches the described donee — Where testator’s history of donations were to similar causes in India — Whether evidence of testator’s intention admissible — Whether Court may settle an administrative scheme — Differences between administrative scheme and cy-près scheme — Wills Act 1997 (Vic) s 36.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr IJ Hardingham QC with Ms U Stanisich	M&K Lawyers Group Pty Ltd
For the First Defendant	No appearance
For the Second Defendant	Mr D Ryan SC	Courtenay & Co Solicitors

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HER HONOUR:

Introduction and summary

Michael Lloyd Niall died on 23 June 2017. Probate of his will dated 11 May 2016 was granted to the plaintiff on 15 September 2017.

Clause 4.2 of the will provides for specific gifts to be paid from the deceased’s estate.

Clause 4.3 then provides:

To give my remaining residuary estate to ORDER OF SELESIANS in India for the purposes of work among the poor in India;

There is no particular entity in India or Australia known as either ‘Order of Selesians’ or ‘Order of Selesians in India’ and no particular organisation that matches this description. ‘Selesians’ is a misspelling of ‘Salesians’. Briefly, the Salesians of Don Bosco (‘the Salesians’) — otherwise known as the Societa Di San Francesco Di Sales — is an international organisation of Catholic priests and brothers founded by St John Bosco in 1859. The Salesians are represented in 132 countries worldwide, including in Australia and India, and operate missionary works with a particular focus on providing for young people. The Salesians also operate in Australia through an association named ‘Salesian Society (Vic) Inc.’ (‘Salesian Missions Australia’).

The plaintiff accepts that the identity of the named residuary beneficiary is ambiguous and unclear and submits that the extrinsic evidence clarifies the identity of the organisation that the deceased meant to benefit. Accordingly, he seeks a declaration that the residuary estate be applied in a manner corresponding with the testator’s donations made to Salesian Missions Australia during his lifetime. These donations were subsequently transferred by Salesian Missions Australia to Salesian organisations in Mumbai in India and, in turn, those organisations subsequently applied the funds to certain charitable projects in India. Alternatively, the plaintiff seeks that an administrative…

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 Niall

Details

AGLC: Re Niall [2019] VSC 423
Case: [2019] VSC 423
Decision Date: 25 June 2019

CaseChat Overview and Summary

The case of Re Niall was heard in the Supreme Court of Victoria. The dispute involved the interpretation of a will which contained a charitable gift intended for the alleviation of poverty in India. The will specified a donee that did not correspond with any known organisation or body. The testator had a history of making charitable donations to similar causes in India. The court was required to determine whether the evidence of the testator’s intention could be considered and whether the court could implement an administrative scheme to direct the gift to a suitable cause.

The central legal issues were whether the court could admit evidence of the testator’s intention to support a charitable cause and whether the court had the authority to create an administrative scheme to facilitate the distribution of the gift. The court considered the statutory provisions under the Wills Act 1997 (Vic), particularly section 36, which governs the application of gifts that cannot be directly administered due to the non-existence or incapacity of the specified donee. The court also examined the differences between an administrative scheme and a cy-près scheme, emphasising the flexibility and purpose of an administrative scheme in addressing the testator's intentions.

The court held that evidence of the testator’s intention could be admitted to interpret the will in a way that aligns with the testator's charitable objectives. The court found that it could establish an administrative scheme to give effect to the testator’s wishes. The court distinguished an administrative scheme from a cy-près scheme, noting that the former is designed to carry out the testator's specific intent, whereas the latter applies when the specific intent cannot be ascertained or fulfilled. Ultimately, the court settled an administrative scheme to direct the gift to a suitable charitable cause in India, reflecting the testator's intended purpose.

The final orders of the court directed that the charitable gift be administered to an appropriate organisation that aligns with the testator's history of donations to similar causes in India. The court’s decision ensures that the testator’s charitable intent is fulfilled in a manner consistent with their documented preferences.

Orders