Re Percy

[2015] NSWSC 1253

Supreme Court

New South Wales

Medium Neutral Citation:	Re Percy [2015] NSWSC 1253
Hearing dates:	28 May 2015
Date of orders:	31 August 2015
Decision date:	31 August 2015
Jurisdiction:	Equity
Before:	Young AJA
Decision:	Advice given to trustee
Catchwords:	WILLS – construction – benefaction to newly ordained priests of Roman Catholic Church – identification of beneficiaries
Category:	Principal judgment
Parties:	Anthony Gerard Percy - plaintiff
Representation:	Counsel: N Bilinsky and A Bailey – for the plaintiff Solicitors: Makinson d’Apice Lawyers – for the plaintiff
File Number(s):	2014/349803

Judgment

1. This is an application for judicial advice by the trustee of the estate of the late Father Joe Higgins. Father Higgins died on 13 August 2013 having left his last will of 1 September 2003 probate of which was granted to the applicant on 2 May 2014.

2. The proceedings were argued before me on 28 May 2015. Mr N Bilinsky and Mr A Bailey appearing for the applicant.

3. The applicant has doubts as to how he should administer the gift that is contained in paragraph 5 of the will. That paragraph reads as follows:

After funeral expenses have been paid that all monies be placed in a trust fund at the Archdiocese Development Fund and from the time of my death, a free gift of $5,000 be given to each newly ordained priest upon his ordination until the fund runs out.

4. The only significant fact to note is that under Clause 2 of the will Father Percy then the Rector of the Good Shepherd Seminary, Homebush was appointed as executor and trustee and that under Clause 5 the following note was appended:

One trustee of the fund shall be the seminary Rector who should give the cheque to the newly ordained.

5. The applicant considers that it is possible that ‘newly ordained priests’ could cover four categories of persons vis:

1. Priests ordained following completion of studies at the seminary of the Good Shepherd at Homebush only;

2. Priests ordained as diocesan priests of the Archdiocese of Sydney only or as members of orders where the principal house in the Archdiocese of Sydney and its diocesan priests for the Archdiocese of Sydney only;

3. Priests ordained:

1. As diocesan priests for any diocese, eparchy, ordinariate or prelature in New South Wales only; or

2. As members of orders and congregations with the principal house in New South Wales and as diocesan priests of the Roman Catholic Church for any diocese, eparchy, ordinariate or prelature in New South Wales only; or

4. Priests ordained:

1. As diocesan priests for any diocese, eparchy, ordinariate or prelature in Australia only; or

2. As members of orders and congregations with the principal house in Australia and as diocesan priests of the Roman Catholic Church for any diocese, eparchy, ordinariate or prelature in Australia.

6. Although evidence defined the terms ‘diocese, eparchy, ordinariate to prelature’, it is unnecessary to set out those definitions here; they all refer to groupings of clergy in the Church.

7. When giving judicial advice the judge pays great attention to the opinion that has been given by counsel to the executor or trustee which advice is put before the court. In the instant case I have the opinion of Mr Nicholas Bilinsky of Counsel. He has analysed the will and has noted the surrounding circumstances that the testator had a close association with the Seminary of the Good Shepherd and that the Rector of that seminary is to be one of the trustees.

8. I had some concern on the original statement of facts as to what was meant by ‘newly ordained’. I requested that further evidence be provided as to what ordinarily happened between graduation from the seminary and ordination as a priest because in some churches there is an intermediate ordination as a deacon and then a delay during practical training before ordination as a priest.

9. Mr Bilinsky considers the word ‘newly ordained’ properly relates to those priests who have just graduated from the seminary. Because of the evidence about ordination to the diaconate, it seems to me that the phrase must mean ordained within the usual time after graduation rather than immediately after graduation. But subject to that it seems to me, with great respect, that Mr Bilinsky’s opinion is the more probable construction of the will.

10. It is tempting to read the will as if a person is ordained a priest almost immediately after he leaves the seminary. However the evidence in this case shows that that is not the case that almost always there is an intermediate step whereby the graduate from the seminary is ordained as a deacon and it is only after he has served as a deacon for at least six months that he will be ordained as a priest. However most persons who graduate and are ordained deacon are ordained priests within 12 months of them leaving the seminary. Accordingly, it may well be that immediately before the death of the testator a man has graduated from the seminary yet he is only ordained a priest after the death of the testator. Is he to be included amongst those who get the $5,000?

11. Mr Bilinsky advises that the bequest is directed to those priests who become ordained immediately following their studies at the Seminary of the Good Shepherd. I agree, subject to the qualification that immediately it is given the meaning of as soon as practicable after, rather than having any concept about it happening in the next week or month.

12. The word ‘newly’ seems to me only to qualify the word ‘ordained’. The gift is to be given on ordination. It does not refer to the date of graduation from the seminary.

13. It seems to me that the indications are that by appointing the Rector of the seminary and by including the provision that the Rector is to hand out the cheque on ordination that the testator intended that the gift be to those priests who had recently graduated from the seminary and who are being ordained priests.

14. Accordingly, I advise the plaintiff by order that the plaintiff would be justified in distributing the residuary estate of the late Joe Higgins by way of gifts of $5,000 each to priests ordained following studies at the Seminary of the Good Shepherd at Homebush who are ordained as priests in the normal progression of priestly formation after graduating from the said seminary and serving their time as a temporary deacon before being ordained priests.

15. I order that the costs of this application be paid out of the funds set aside by the testator for that purpose.

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Decision last updated: 03 September 2015