1. Order under s 29A of the Probate and Administration Act 1898 that the will dated 3 February 2003 of the late Mona Alexis Fox (also known as Mona Alexis Brand) (who died on 1 August 2007), probate of which will was granted on 12 December 2007, be rectified by substituting for the word “Art”, in the description of the institution “Art Gallery of Victoria” in clause 3(c) of the will, the word “National”. 2. Declare that the gift to the National Gallery of Victoria under the will as so rectified is a valid gift for charitable purposes. 3. Declare that the National Gallery of Victoria has disclaimed the gift to it under the will as so rectified. 4. Direct the executors and trustees of the said will to take steps to identify a substitute trustee for the administration of the 'Len Fox Award'. 5. Declare that, in the event that a substitute trustee for the administration of the ‘Len Fox Award” cannot be identified within a reasonable time to be determined, the matter should be referred to the Attorney-General to establish a scheme for the administration of the gift cy-près in accordance with s 13 of the Charitable Trusts Act 1993 (NSW).
CATCHWORDS:
WILLS PROBATE AND ADMINISTRATION – principles of rectification and construction – acceptance and disclaimer of gifts – CHARITABLE TRUSTS – whether valid gift for charitable purposes – whether general charitable intention – cy-près schemes – half of residuary estate left to non-existent ‘Art Gallery of Victoria’ to create an annual painting award – HELD – rectification of will to refer to National Gallery of Victoria – valid disclaimer despite initial acceptance of gift due to misapprehension of conditions of gift – gift does not fail by reason of non-existence of ‘Art Gallery of Victoria’, by reason of disclaimer, for uncertainty or impracticality and is a valid gift for a charitable purpose – alternate trustee to be appointed to administer award
[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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AGLC
Tantau v MacFarlane [2010] NSWSC 224
Case
[2010] NSWSC 224
Decision Date
CaseChat Overview and Summary
The case of Tantau v MacFarlane involved a dispute concerning the interpretation and rectification of a deceased's will. The deceased had left half of his residuary estate to an institution referred to as the ‘Art Gallery of Victoria’ for the purpose of establishing an annual painting award. However, the ‘Art Gallery of Victoria’ did not exist as such and was likely a misdescription of the National Gallery of Victoria. The executors of the will accepted the gift initially but later disclaimed it due to their understanding of the conditions attached to the gift. The issue before the court was whether the gift was validly made to a charitable purpose and whether it could be rectified to refer to the National Gallery of Victoria, despite the disclaimer.
The central legal issues addressed by the court were the principles of rectification and construction of the will, the validity of the charitable gift, and the implications of the disclaimer. The court needed to determine if the gift was for a charitable purpose and if the description of the intended beneficiary was a clerical error that could be rectified. Additionally, the court had to consider whether the disclaimer of the gift was valid and the effect of the disclaimer on the validity of the gift.
The court held that the will could be rectified to refer to the National Gallery of Victoria, correcting the misdescription of the intended beneficiary. The court found that the disclaimer of the gift was valid, despite the initial acceptance, because the executors had a misapprehension regarding the conditions of the gift. The court further held that the gift did not fail due to the non-existence of the ‘Art Gallery of Victoria’, the disclaimer, any uncertainty, or impracticality. The gift was deemed a valid charitable gift because it was made for a charitable purpose. Consequently, the court ordered that an alternate trustee be appointed to administer the award in accordance with the rectified terms of the will.