Swaney v Austin Health - [2013] VSC 654

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PROBATE LIST

No. S CI 2013 00888

VINCENT JAMES SWANEY	Plaintiff
v
AUSTIN HEALTH	First defendant
DEPARTMENT OF VETERANS’ AFFAIRS	Second defendant

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 NOVEMBER 2013
DATE OF JUDGMENT:	21 NOVEMBER 2013
CASE MAY BE CITED AS:	Swaney v Austin Health
MEDIUM NEUTRAL CITATION:	[2013] VSC 654

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WILLS AND ESTATE – construction of will – meaning uncertain or ambiguous – reference to extrinsic evidence – identity of beneficiary of gift to lost dogs’ shelter – whether gift for display of testator’s art and/or to provide cash prizes for art competition was for charitable purposes – identity of beneficiary of that gift – whether trust for charitable purpose survives presence of non-charitable purpose – whether gifts absolute – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 54.02, Wills Act 1997 (Vic) s 36(1), Charities Act 1978 (Vic) pt 1B, s 7M.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr A Donald	Glenister Steinfort & Company
For the first defendant	Mr T Mah	Austin Health
For the second defendant	Ms E Tueno	Australian Government Solicitor

HIS HONOUR:

Vincent James Swaney is the executor of the estate of George John William Duncan who died on 16 September 2011 leaving a handwritten will dated 2 September 2011. Mr Swaney applies, under r 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) for directions as to the construction of parts of that will.

By order of the court, Austin Health and the Secretary to the Department of Veteran Affairs were joined as parties to the proceeding as persons interested in the matters in issue.

The matters in issue have been defined by reference to ten questions which have been submitted for the court’s determination (see appendix). The parties agree as to the answers which should be given to the questions, with two exceptions.

The assistance of the court is sought in relation to the construction of the will in two particular respects:

(1) the meaning of the words ‘Thirty thousand dollars to the Lost Dogs’ Shelter, Villiers St. North Melb’

(2) the meaning of the words ‘The remainder donated to Repatriation for a possible gallery to display my art and/or a perpetual term deposit, the annual interest to provide cash prizes for winning paintings or art works entered in the annual Art Competition by T.P.I. Victorian adult war veterans’

In relation to the construction of the will in the first respect, there are two competing interpretations. The first, and in my view the intended meaning, is that the words refer to Animal Welfare League of Victoria, ACN 004 238 475, being the legal person operating under the name ‘Lort Smith Animal Hospital’ and situated at 24 Villiers Street, North Melbourne, Victoria. The second, and in my view the non-intended meaning, is the Lost Dogs’ Home at 2 Gracie Street, North Melbourne, Victoria.

It is not possible to identify…

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.

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Details

Case: [2013] VSC 654
Decision Date: 21 NOVEMBER 2013

CaseChat Overview and Summary

In Swaney v Austin Health, the dispute centred on the interpretation of the will of a deceased artist, with the primary issue being the identity of the beneficiaries of specific gifts made by the testator. The case was heard in the Supreme Court of Victoria. The main legal issues were whether the gift to a lost dogs' shelter was intended for charitable purposes and, if so, whether the gift for displaying the testator's art and providing cash prizes for an art competition was also for charitable purposes. Additionally, the court had to determine whether the gifts were absolute or if they constituted trusts that could survive the presence of a non-charitable purpose.

The court examined the will's language and considered extrinsic evidence to resolve the ambiguity. It found that the gift to the lost dogs' shelter was not for a charitable purpose, as the shelter did not qualify as a charitable entity under the Charities Act 1978 (Vic). Regarding the gift for displaying the testator's art and providing cash prizes, the court concluded that these elements were not inherently charitable and did not transform the overall purpose of the gift into a charitable one. The court also determined that the gifts were absolute rather than trusts, as they did not contain language suggesting an intent to create a trust.

Consequently, the court ruled that the gifts were not for charitable purposes and were to be distributed as absolute gifts. The will's provisions were thus interpreted to mean that the intended beneficiaries were to receive the gifts outright. The court ordered that the assets be distributed according to the clarified interpretation of the will.

Orders