The Estate of Dulcie Edna Rand (dec'd) - [2009] NSWSC 48

No judgment structure available for this case.

CITATION: The Estate of Dulcie Edna Rand (dec'd) [2009] NSWSC 48

HEARING DATE(S): 5 February 2009

JUDGMENT DATE :
16 February 2009

JURISDICTION: Equity Division

JUDGMENT OF: Harrison J

DECISION: Question whether executor justified in distributing residuary gift to an unincorporated association misdescribed in the will answered 'yes'

CATCHWORDS: WILLS – s 63 Trustee Act 1925 – judicial advice - residuary gift in will to unincorporated association – named beneficiary not in existence under that name at date of death of deceased – whether existing association with different name misdescribed by deceased in her will – whether existing association is successor to the named beneficiary – question whether executor justified in distributing gift to existing association - question answered 'yes'

LEGISLATION CITED: Trustee Act 1925

CATEGORY: Principal judgment

CASES CITED: Australian Executor Trustees Ltd v Ceduna District Health Services Inc [2006] SASC 286
Cram Foundation v Corbett-Jones [2006] NSWSC 495
Gerhady v South Australian Auxilliary to the British & Foreign Bible Society Inc (No 3) (1986) 44 SASR 195
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 82 ALJR 1425
Public Trustee v Cerebral Palsy Association of Western Australia Ltd [2004] WASC 36; (2004) 28 WAR 496
Re Flynn, deceased [1975] VR 633
Re Tyrie, deceased (No 1) [1972] VR 168 at 186

PARTIES: Faye Judith Carter as Executor and Trustee of The Estate of Dulcie Edna Rand (dec'd) (Plaintiff)

FILE NUMBER(S): SC 4649 of 2008

COUNSEL: D H Murr SC with T T Baw (Plaintiff)
G O Blake SC (Anglican Church Property Trust Diocese of Sydney)
B Nolan (Attorney General in and for the State of New South Wales)

SOLICITORS: Holman Webb Lawyers (Plaintiff)
Steven Lucas, Anglican Church Diocese of Sydney Sydney Diocesan Secretariat (Anglican Church Property Trust Diocese of Sydney)
I V Knight, Crown Solicitor (Attorney General in and for the State of New South Wales)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HARRISON J

16 February 2009

4649 of 2008 The Estate of Dulcie Edna Rand (deceased)

JUDGMENT

1 HIS HONOUR: On 24 July 1997 Dulcie Edna Rand of Burwood in the State of New South Wales ("the deceased") published her last will. She appointed Ronald William Carter as the executor of her will and trustee of her estate. The deceased died on 21 February 2006. This Court granted probate of the deceased's will to Mr Carter on 22 April 2006. The estimated value of the estate of the deceased was $1,898,243.08. On 2 December 2007 Mr Carter died and probate of his will was granted to his wife Faye Judith Carter ("the plaintiff").

2 The will of the deceased relevantly gave the residue of her estate to her trustee for division into six equal parts or shares including a direction in cl 4(f) that he stand possessed of "the remaining [one sixth] such equal part or share for the PHILIPPINES AND AUSTRALIA EPISCOPAL CHURCH of Glendenning, New South Wales for the general purposes of that Church absolutely".

3 By her summons filed on 11 September 2008 the plaintiff seeks the opinion, advice and direction of the Court pursuant to s 63 of the Trustee Act 1925 ("the Act") on the following questions: -

A. In the circumstances is [the plaintiff], as executor and trustee of the estate, justified in distributing a gift to St Paul's Multicultural Filipino-Anglican Ministry, a congregation of the All Saints Anglican Church in North Parramatta, pursuant to clause 4(f) of the will?

B. If the answer to question A is no, does the gift by the testatrix to the Philippine and Australia Episcopal Church show a general charitable intention?

D. If the answer to questions A to C is no, is [the plaintiff] justified in making final distributions to the other beneficiaries and finalising the estate without making further inquiry as to the existence and identity of the Philippine and Australia Episcopal Church?

Background facts

4 Those questions arise for consideration in the light of the following facts and circumstances, which are set forth with attached supporting documentation in a series of three statements of facts.

5 The plaintiff's solicitors have made inquiries about the existence and identity of the Philippine and Australia Episcopal Church. No body or organisation going by or using that name would appear to exist. None has been found. The inquiries, however, have revealed that St Paul's Multicultural Filipino-Anglican Ministry, a congregation of the All Saints Anglican Church in North Parramatta, claims to be the same unincorporated association that called itself the Philippine and Australia Episcopal Church. If that entity were to be recognised as a residuary beneficiary under the will it would be entitled to receive approximately $300,000 representing one sixth of the residuary estate of the deceased.

6 The plaintiff's solicitors have received correspondence from various people in relation to the identity and existence of the Philippine and Australia Episcopal Church. Some of this correspondence is set out in the paragraphs that follow.

7 As will emerge, Reverend George Gayagay is a central figure in the circumstances relevant to the present inquiry. He was therefore contacted about the deceased's will by the plaintiff's solicitors shortly following her death. In a letter dated 30 June 2006, he advised the plaintiff's solicitors in the following terms:

"Thank you ever so much for your letter re the ESTATE OF THE LATE DULCIE EDNA RAND. I noticed you have written me on the 5th April which I have not received if it was addressed to 12 Gregory St., Glendenning. We have moved residence from this address to the above present address. Your letter dated 9th of June was thus forwarded to us.

I wish to confirm that I am the Priest in Charge of the church congregation referred to in the clause 4 (f) as PHILIPPINE AND AUSTRLIAN EPISCOPAL CHURCH which the late Mr. Max Rand, Mr Ronald William Carter and Mr. Richard Row have helped, encouraged to organise soon I arrived from the Philippines in 1991.

After renting the church hall of St. Alban for 7 odds years, we moved to join St. Paul Anglican Church, in 2002. At St. Paul, we maintain our separate ministry at 11.00 a.m., from the local congregation that meet 9.30 a.m., for linguistic, cultural and liturgical reasons and we call our church as St. Paul's Multicultural Filipino-Anglican Ministry . This is so to be able to reach out non-Filipino migrants and not just for the Filipinos.

Please find an article published in the Southern Cross of the Diocese of Sydney regarding our integration to the Anglican Church of St. Park's, Harris Park.

It is with deep gratitude to know that my friend, the late Mr. Max Rand did not forget his Filipinos friends to nominate our church in the estate of his sister, Dulce Edna Rand, who now has died in February this year. Rest eternal grant unto her O Lord and let perpetual shine upon her and may she rest in peace.

8 The article to which that letter refers relevantly contains the following material:

" Sydney finally embraces Filipino import

by Jeremy Halcrow

It may have taken eleven tiring years, but the Rev George Gayagay is 'overjoyed' that his congregation of Filipino Anglicans has been officially accepted into the Diocese of Sydney. "This offer came out of the blue," he said "It's a great joy we have become part of the established Anglican Church otherwise we are just nomads."

The offer was due to the initiative of North Parra-matta parish who were seeking to help resource an ethnic church, not merely rent out their buildings.

A 'celebration' service in late October marked the integration of the congregation into the parish. The service at their new home – St Paul's, Harris Park – was attended by the Prime Bishop of the Episcopal Church of the Philippines (ECP), the Most Rev Ignacio Saliba, and five other Filipino bishops.

Mr Gayagay's vision took shape when he met Filipino-Australians at a ministry conference in 1987. From Manila, he applied to migrate to Australia. Arriving in 1991 with support from the ECP to oversee his church until arrangements were finalised with the Anglican Church in Australia, Mr Gayagay accepted an assistant ministry position at St John's, Ashfield and then St Luke's, Enmore. But with most Filipinos living in Sydney's west, he realised that if the ministry was to progress it would need another home.

Taking a full-time job as chaplain at the Seafearers Centre, Port of Sydney, he rented a hall at Rooty Hill in 1996. Now there is a regular congregation of 30 adults and 15 children drawn from 120 contacts.

9 After receipt of this information the plaintiff's solicitors sent a letter on 21 December 2006 to St Paul's Multicultural Filipino-Anglican Ministry indicating that an interim distribution of $20,000 would be made on certain terms. That distribution was made on 23 January 2007. However, in the events that occurred, the plaintiff's solicitors determined to make further inquiries, as revealed by the following correspondence.

10 Under cover of a letter dated 9 September 2007 to the plaintiff's solicitors Reverend Gayagay provided what is described as a "Written undertaking of Evidence". That document is in the following relevant terms:

"TO: HOLMAN WEBB LAWYERS
From: Rev. George Gayagay, Priest in Charge
St. Paul's Multicultural Filipino Anglican Ministry
Re: Written undertaking of Evidence

This is with reference to the Letter of the Holman Webb Lawyers by John Wakefield dated 29th August, handling the Will of Dulce Edna Rand (attached) to Richard Row which he tabled in our Council meeting last Sunday asking for written undertaking of return evidence about the name of our church in question:

How the Church name nominated in the Will of Dulce Edna Rand?
In December, 1996, Mr. & Mr. Ronald William Carter attended our Christmas service and party at St.Alban's Church, Rooty Hill, during which Bill played the role of Santa Claus for the children receiving their gifts.

In that occasion, Bill asked me what name I call my church because Dulce Rand, sister of Max Rand, will draw up her Will and our church to be included, he said. I gave him the name, "Philippine and Australian Episcopal Church" as it now appears in the Will. Why that name? It was because at that time our ministry was just organizing as an Area Mission of the Episcopal Church in the Philippines ministering to Filipino migrants of Episcopal background residing in Sydney until such time we become part of the Anglican Diocese of Sydney. The Episcopal; Church in the Philippines as in USA is the daughter church of the Anglican Church of England. So we were preparing to become a full pledged Ministry and seek admission to the Anglican Diocese of Sydney where we reside. We also called ourselves, in short, "Fil-Aussie Christian Fellowship" so we can relate with other Filipino community organizations and participate in their social and cultural activities as one way of meeting other Filipinos and inviting them to church to increase our members.

Admission to the Anglican Diocese as a congregation
The time has come on 22 October, 2002, our church ministry was turned over by the Prime Bishop of the Episcopal Church in the Philippines to the Anglican Diocese of Sydney through the Archdeacon, The Venerable Ken Allen, who arranged our transfer to St. Paul's Anglican Church, Harris Park. The turnover was celebrated in a thanksgiving service attended by some Bishops of the Philippines. The Rev. Stan Colefax, former Rector of St, John Ashfield, preached the sermon. Our turnover was then published in the Southern Cross Magazine of the Anglican Diocese entitled, "Sydney finally embraces Filipino Import" by Jeremy Halcrow.

Change of Ministry Name
With our new status as a congregation of the Anglican Diocese of Sydney, we adopted a name to call ourselves St. Paul's Multicultural Filipino Anglican Ministry as strategy of mission to reach out non-Filipino ethnic migrants. There was a Chinese learning English with us and Indian married to Filipino attending our church services became members. We did not want also to be exclusive Filipino Anglican congregation so "multicultural" was added. The Anglican congregation of St. Alban Rooty Hill named its ministry as Bible Based Ministry (BBM) so nothing strange about changing name.

The crux of the matter is that the church as earlier named Philippine and Australian Episcopal Church before the turnover under the Episcopal Church in the Philippines are the same Christian souls in its present name, St. Paul's Multicultural Filipino Anglican Ministry under the Anglican Diocese of Sydney. There is no other church congregation ever identified with the Rev. George Gayagay, named as the priest in charge, together with his ever faithful Lay Reader, Richard Row. The "church" being referred to here are the people composing formerly the Filipino Episcopalians now changed to embrace the name Anglican because they are with the Anglican Diocese of Sydney. The name change is due to change of circumstances as explained. I am attached with an international ministry in Port Sydney was called formerly The Mission to Seamen now has changed to The Mission to Seafarers because of gender mix of Seafarers now a days.

At the outset, in my reply letter of 30th of June to the letter dated 9th June, 2006 by Lee Jackson of the Holman Webb Lawyers, was asking me to confirm the named as Philippine and Australian Episcopal Church as described in clause 4 (f) of the Will of the Deceased. I did confirm, however, explained that we have changed our name as explained above. Apparently, it was accepted as our changed name appeared in their previous return correspondences addressed to me as the Priest in Charge and the changed church name: 1) Letter 1 August, 2006 with enclosed form of Acknowledgement and Consent to pay the Executor of $40,000 which on our part Richard Row and I signed on behalf of St. Paul's Multicultural Filipino Anglican Ministry authorizing the payment of the Executor's commission on the 6th August 2006. 2) letter dated 23 Jan. 2007, check paid to our Church St, Paul's Multicultural Filipino-Anglican Ministry in the amount of $20,000 which would now be recalled if the client is not satisfied about our church as per John Wakefield letter 29 August, 2007. He asked for written undertaking of evidence to satisfy the client. By the way who is the client not satisfied? Their previous correspondences say they are acting on behalf of Ronald William Carter, Executor of the Will of the Deceased Dulce Edna Rand.

Other return evidence
It way well be a certification from the Archdeacon of the Anglican Diocese of Parramatta, Venerable Ken Allen, who admitted us on behalf of the Archbishop of the Anglican Diocese of Sydney and arranged our transfer to St. Paul's Anglican Church, Harris Park, and certification from the Rev. Stan Colefax who preached during the service of our turnover thanksgiving service. Rev. Stan Colefax played a vital role in the development of our Filipino Anglican Ministry as it is now.

Historical account of the ministry: I first met Rev. Stan Colefax, Rector of St. John Ashfield, spending his sabbatical leave in the Philippines in 1986. He invited me during my visit to Sydney in 1987 to preach in his Church's 150 Foundation Day anniversary. There, I met Richard Row, Ronald William Carter, whom we affectionately call Bill, Max Rand and others. Since there were some Filipinos who came to church to attend and to meet me that Sunday, Rev. Stan Colefax mooted the idea of developing Filipino Anglican Ministry in Sydney with a Filipino Curate that interested me to come back. I returned in 1991 with my family as migrants and the same friends mentioned above helped me organized the ministry joining St. John Ashfield, later we moved to St. Luke's in Stanmore until early 1995. Due to the distance and most Filipinos were coming from the inner Sydney west, we moved to join shortly St. Mary Magdalene in St. Mary's. There, we realized we cannot develop a Filipino ministry unless we become separate congregation, and not just joining a local congregation, for linguistic, cultural and liturgical reasons. We then moved to rent the church hall of St. Alban's Church in Rooty Hill and started on Easter Day, April 1996 until October, 2002 when we moved to Harris Park to the present.

11 In a letter to the plaintiff's solicitors dated 11 September 2007, K P Allen, the Archdeacon of Western Sydney Region of the Anglican Church Diocese of Sydney, was able to provide the following information:

"Dear Mr Wakefield,

Estate of the Late Dulcie Edna Rand
Re: St Paul's Multicultural Filipino Anglican Ministry

I refer to your letter of 29th August 2007 to Mr Richard Row regarding this matter which concerns your client's level of satisfaction that the Filipino Church which currently meets at Harris Park is the named beneficiary in the Will.

I believe that this church is the church in question. The minister in charge is the Rev George Gayagay who lived at Glendenning.

This church is an Episcopal Church and was supervised initially from the Philippines as Mr Gayagay was not licensed in the Diocese of Sydney.

In 2002 I was responsible for arranging a licence from the then Archbishop of Sydney, Archbishop Goodhew, for Mr Gayagay to officiate in Sydney thus bringing him under our Episcopal supervision in the Sydney Anglican Diocese. At the same time due to changed circumstances at Rooty Hill I arranged for the church to re locate to St Paul's Harris Park.

These two things were marked by a celebration which took place on 2nd October 2002. It was attended by some Bishop's of the Episcopal Church in the Philippines (our sister Diocese). The Rev S. Colefax preached and I handed over a license to Mr Gayagay on behalf of Archbishop Goodhew. Thus the church became St Paul's Multicultural Filipino Church which meets in the Western Sydney and no longer The Philippine and Australia Episcopal Church. I can vouch for the fact that The Rev George Gayagay once lived at Glendenning though he has since moved to Woodcroft. Richard Row with whom you correspond is a lay reader in the church. I can also vouch for the historical notes accompanying my letter which refer to the church's connections with Mr Row, Mr Carter and Mr Rand.

12 In a letter to the plaintiff's solicitors dated 21 September 2007 from The Most Reverend Ignacio C. Soliba, Prime Bishop of the Episcopal Church in the Philippines, Reverend Soliba made the following assertions:

"SIRS/MEDAMES:

We certify that St. Paul's Multicultural Filipino-Anglican Ministry is one and the same as the Philippine and Australian Episcopal Church . This congregation was also called and known as the Fil-Aussie Christian Fellowship when it was worshiping at St. Alban's Church Hall in Rooty Hill.

This congregation was organized under the Episcopal Church in the Philippines with Father George Gayagay as the Vicar and Mr. Richard Row licensed as Lay Reader. Both Father Gayagay and Mr. Row are the gratis voluntary staff of this congregation ever since it was founded and organized. Father Gayagay was later on licensed to practice his ordained ministry in the Diocese of Sydney and to take charge of this congregation which was permitted to use St. Paul's Anglican Church, Harris Park with the new name St. Paul's Multicultural Filipino-Anglican Ministry. It is at St. Paul's Anglican Church that I formally turned over this congregation to the Diocese of Sydney in October 2002.

This letter is issued on the doubt if St. Paul's Multicultural Filipino-Anglican Ministry is the same as the church named as beneficiary of the Estate of Dulce Edna Rand.

13 Another letter to the plaintiff's solicitors of the same date from Reverend S R Colefax contained the following information:

"ATTENTION: Mr John Wakefield

Dear Sir

Following your letter to Mr Richard Row, dated 29 August 2007, with reference to the St Paul's Multicultural Filipino Anglican Ministry, I have been asked if I would write to help you understand the reason of the change from the original Filipino Episcopal Ministry which the late Dulcie Edna Rand was introduced to.

As I and my wife were hosts to Bishop Lumpius when he was in Australia for an Australian Board of Missions conference which, by the way, is now known as the Anglican Board of Missions, he invited me to go to the Philippines as his guest and see the work of the church which is the only Christian country in South East Asia. During my stay with him I met the Episcopal Bishop of Dallas, USA who talked to me about how the American Church would like to see the Filipinos looking more toward Australia. This was the message I brought back to the ABM and the Archbishop of Sydney.

When the Rev'd George Gayagay arrived in Australia the Diocese was not familiar with the church in the Philippines and so it was some time before George was able to get a congregation functioning. Dulcie Rand and her brother, and other members of my congregation, were very supportive but I had left being Rector of St John's Ashfield to be the Rector of St Stephen's Bellevue Hill. Rev'd George Gayagay was able to have the cooperation of the Rev'd Elvin Shepherd from Rooty Hill, where there are more Filipino people living. Mr Richard Row, a member of St John's Ashfield, gave a great deal of help. The Church grew even with some difficulties, and the Church in the Philippines gave some support but, finally, after a move to Harris Park, the Philippines Bishops gave their blessing and Sydney Diocese established George's congregation into the Sydney Diocesan family. There was great rejoicing and I was asked to be the guest preacher for that service on 22 October 2002.

14 Finally, in a letter to the plaintiff's solicitors dated 28 July 2008, Priti Pasupuleti, the Legal Officer of the Anglican Church Diocese of Sydney, furnished the following material:

"Dear Mr Jackson

Estate of the late Dulcie Edna Rand
St Paul's Multicultural Filipino-Anglican Ministry

I refer to your facsimile of 7 July 2008 to Archdeacon Ken Allen concerning this matter. Given the nature of your questions, Archdeacon Allen has asked me to respond to you.

1. What is the legal relationship between the Anglican Church Diocese of Sydney and the St Paul's Multicultural Filipino-Anglican Ministry?

I understand that the Rev George Gayagay has already provided you with a detailed history of the Philippine and Australian Episcopal Church and his contact with the late Ms Dulcie Rand. I will not repeat this information, other than where it is necessary to indicate the relationship with the Anglican Church Diocese of Sydney.

The St Paul's Multicultural Filipino-Anglican Ministry (the "Ministry"), then under its former name, the Philippine and Australian Episcopal Church, was formally recognised as an Anglican ministry of the Sydney Diocese in a thanksgiving service in October 2002 at St Paul's Anglican Church Harris Park which was attended by the Prime Bishop of the Episcopal Church of the Philippines, the Most Rev Ignacio Saliba. The change in the name of the Ministry was made to reflect its new status and location, meeting as it then was at St Paul's Anglican Church Harris Park. The Ministry has since relocated to All Saint's Anglican Church North Parramatta, a church of the same Anglican Parish as St Paul's, namely the Anglican Parish of North Parramatta with Harris Park.

The Ministry is now a congregation of All Saint's Anglican Church North Parramatta under the authority of the Rev Owen Goddard, rector of the Parish. However the Rev George Gayagay is the pastor of the Ministry. Mr Gayagay holds a licence from the Anglican Archbishop of Sydney to assist in the Parish, the licence having been issued at the request of Mr Goddard. See a copy of this licence enclosed.

The Anglican Church of Australia, to the extent that it operates in New South Wales, is constituted by the Anglican Church of Australia Constitution Act 1961.

Section 74 of the Constitution defines a "Parish" to include "any parochial district or similar pastoral division constituted under ordinance of the Synod of a Diocese". The Parish is constituted under ordinance of the Synod of the Diocese of Sydney, namely the Parishes Ordinance 1979. All Saint's Anglican Church North Parramatta is a church of the Parish licensed for divine service by the Archbishop of Sydney.

2. If the St Paul's Multicultural Filipino-Anglican Ministry is recognised as a residuary beneficiary, to whom are the moneys to be paid, ie to the Anglican Diocese of Sydney or to St Paul's Multicultural Filipino-Anglican Ministry?

Given the size of the gift our preference would be for the gift to be paid to the Anglican Church Property Trust Diocese of Sydney, being the corporate trustee for the Diocese. The Property Trust acts as trustee for numerous bequests of behalf of Anglican parishes.

So far as we are aware the Ministry itself does not have office-holders, other than Mr Gayagay who acts as its pastor. If your client wished to pay moneys to the Ministry directly it would need to pay them to the churchwardens of All Saint's Anglican Church Parramatta who are responsible for the funds of that church.

3. If the moneys were paid to the Anglican Diocese of Sydney, how would the moneys be applied?

It is not possible to indicate at this stage how the moneys would be applied except to say that they would be used in accordance with the terms of the bequest, in other words for the general purposes of the Philippine and Australian Episcopal Church, now known as the St Paul's Multicultural Filipino-Anglican Ministry. I understand that one potential use of the gift may be towards the recruitment and theological training of a Filipino person to assist in growing the Ministry.

15 Shortly before the commencement of these proceedings the plaintiff's solicitors sought advice from senior counsel as to whether the plaintiff would be justified in distributing the gift to St Paul's Multicultural Filipino-Anglican Ministry, which is a congregation of the All Saints Anglican Church, North Parramatta. Senior counsel advised that there were considerable doubts as to whether St Paul's Multicultural Filipino-Anglican Ministry was the same unincorporated association that called itself the Philippine and Australia Episcopal Church.

The Anglican Communion

16 The worldwide Anglican Communion comprises over 80 million members in 44 regional and national member churches in over 160 countries. The nature of the Anglican Communion has been described by the Lambeth Commission in The Windsor Report 2004 in the following terms:

"47. When 'the Anglican Communion' describes itself, it is self-consciously describing that part of the Body of Christ which shares an inheritance through the Anglican tradition, that is, from the Church of England, . . .

48. Various different but interlocking descriptions of the Anglican Communion exist amongst us. The Lambeth Conference has described the Anglican Communion as a fellowship of churches in communion with the See of Canterbury. Individual provinces express their own communion relationships in a variety of juridical forms, . . .Communion is therefore a relationship between churches (institutional or ecclesial communion) as well as between individual Christians (personal communion).

The Episcopal Church in the Philippines

17 The Episcopal Church in the Philippines began as a Missionary of the Episcopal Church in the United States of America. It became a Missionary Diocese in 1965. On 1 May 1990, with five constituent Dioceses, it was inaugurated as an autonomous Church Province within the Anglican Communion. The church's Constitution includes the following provision:

Section 1

The Anglican Church of Australia

18 The Anglican Church of Australia commenced on 1 January 1962. The Constitution of the church includes the following provision:

"6. The Church will remain and be in communion with the Church of England in England and with churches in communion therewith so long as communion is consistent with the Fundamental Declarations contained in this Constitution".

19 The Anglican Church of Australia is currently divided into five Provinces including New South Wales and 23 Dioceses including the Diocese of Sydney. Since 1995 the Diocese of Sydney has been divided into five Regions, including the Western Region.

20 The most senior member of the clergy in the Province of New South Wales and the Dioceses of Sydney is the Archbishop of Sydney. The most senior clergy in each Region of Sydney since 1995 have been a Bishop and Archdeacon. Ministry in the Diocese of Sydney is regulated by the issue of licences, including an authority to officiate, by the Archbishop of Sydney.

Reverend George Gayagay

21 The Reverend George Colal Gayagay was ordained in the Diocese of Northern Philippines of the Episcopal Church in the United States of America as a Deacon on 24 June 1970 and as a priest in 1971. His ministries from his ordination as a Deacon up to 7 October 1998 are described in a letter of that date from him to the Archbishop of Sydney. He and his family arrived in Sydney on 17 July 1991. He first lived at 85 George Street, Mt Druitt until 1993. He was unemployed for most of 1991 and 1992. In 1992 he competed a Graduate Diploma of Rehabilitation Counselling at the University of Sydney. He was awarded this Graduate Diploma on 6 April 1993.

22 In 1994 Reverend Gayagay worked as an underwriter with the AMP Society for three months. He later completed a cleaning course and worked as a cleaner at Minchinbury Hospital until 16 February 1995. For a few weeks after his arrival in Australia he conducted religious services according to the rites of the Episcopal Church in the Philippines in the double garage of his house at Mt Druitt. People of Filipino nationality attended these services.

23 In about August 1991 Reverend Gayagay had been issued with an Authority to Officiate to assist in the Parish of Ashfield by Archbishop Robinson. During this period until November 1991 he and some other Filipinos attended the 8.00am communion service at St John's Anglican Church, Ashfield. He regularly assisted in the communion service as well as sometimes presiding and preaching. The Authority to Officiate was terminated at the end of December 1991. For about three months from November 1991 to February 1992 he conducted religious services according to the rites of the Episcopal Church in the Philippines from his garage as before. People of Filipino nationality attended these services as well.

24 From about February 1992 until late 1995 Reverend Gayagay and 10 to 20 Filipinos were involved in St Luke's Anglican Church, Enmore.

25 On 16 February 1995 Reverend Gayagay commenced working as Chaplain on a part-time basis with The Mission to Seamen NSW, which is part of a worldwide missionary society of the Anglican Communion. He continued with this part-time ministry until 1998 when he was employed on a full-time basis. In July 1995 the Most Reverend Ignacio Soliba suggested to him that he begin exploring the possibility of starting a Filipino congregation having a dual membership with the Anglican Church of Australia and the Episcopal Church in the Philippines. As at August 1995 Reverend Gayagay was living at 12 Gregory Street, Glendenning and he was still living at that address in October 1999. For a few months from the end of 1995 until about Easter 1996 Reverend Gayagay and about 10 to 20 Filipinos attended services but did not preside at a Holy Communion service or preach.

26 From 21 April 1996 to 5 October 2002 Reverend Gayagay conducted religious services according to the rites of the Episcopal Church in the Philippines at St Alban's Anglican Church Hall, Rooty Hill. Apart from conducting religious services, he also provided pastoral care to people attending these services and other Filipinos. These activities, including printing and payment of the weekly licence fee for the use of the hall, were paid for from offertories. Throughout this period Reverend Gayagay maintained a Service Record Book, which recorded the type of service (Morning Prayer or Holy Communion), the attendance and number of communicants, and the amount of the offertories. A record of offertories and expenses was contained in a separate book.

27 In about October 1996, the business name Fil-Aussie Christian Fellowship was registered and a cheque account in that name was opened at the Mt Druitt branch of the Commonwealth Bank of Australia. In 1997 Bishop Soliba appointed Reverend Gayagay as Vicar to the Fil-Aussie Christian Fellowship. In a letter to the Right Reverend Brian King, Bishop of the Western Region, which was also copied to Archbishop Goodhew, Bishop Soliba requested Bishop King to conduct a confirmation service for the Episcopal Church in the Philippines congregation meeting at St Alban's Anglican Church Hall, Rooty Hill. On 5 October 1997 Bishop King conducted a confirmation service according to the rites of the Anglican Church of Australia with Bishop Soliba in attendance. On 20 September 1998 Reverend Dr Canon Claydon of the Anglican Church of Australia preached at the Holy Communion service. In a letter dated 17 May 2002 written by Bishop Soliba to the Most Reverend Dr Peter Carnley, the Primate of the Anglican Church of Australia, Bishop Soliba thanked him for his understanding and concern regarding the Filipino-Australian Christian Fellowship in Sydney. At that time the fellowship was under the Episcopal Church in the Philippines in accordance with a verbal arrangement with Archbishop Goodhew, and Bishop Soliba expressed his willingness to turn over the small congregation to the Anglican Church of Australia.

28 In June and July 2002 there were discussions between representatives of the Diocese of Sydney and Reverend Gayagay with respect to the transfer of Episcopal oversight to the Diocese of Sydney, and a change to the meeting place of the Fil-Aussie Christian Fellowship from St Alban's Anglican Church Hall, Rooty Hill to St Paul's Anglican Church, Harris Park.

St Paul's Multicultural Filipino-Anglican Ministry since October 2002

29 On 22 October 2002 there was a thanksgiving service at St Paul's Anglican Church, Harris Park at which the Fil-Aussie Christian Fellowship was transferred to the Diocese of Sydney. Bishop Soliba and five other bishops of the Episcopal Church in the Philippines and Archdeacon Allen attended the service. The name of this ministry was changed from Fil-Aussie Christian Fellowship to St Paul's Multicultural Filipino-Anglican Ministry.

30 From then until early 2007 the St Paul's Multicultural Filipino-Anglican Ministry met at 11.00am each Sunday at St Paul's Anglican Church, Harris Park and since early 2007 has met at 11.30am each Sunday at All Saints Anglican Church, North Parramatta, which is another church within the Parish of Parramatta North with Harris Park. Reverend Gayagay conducts services according to the rites of the Anglican Church of Australia. With the exception that the rites used for religious services have been those of the Anglican Church of Australia, rather than the Episcopal Church in the Philippines, Reverend Gayagay has engaged in the same activities as priest of the St Paul's Multicultural Filipino-Anglican Ministry that he engaged in as priest of the Fil-Aussie Christian Fellowship. The St Paul's Multicultural Filipino-Anglican Ministry has always been a separate congregation of the Parish of Parramatta North with Harris Park and until early 2007 met separately from the existing congregation of St Paul's Anglican Church, Harris Park. That congregation worshipped at 9.00am each Sunday, and since early 2007 it has worshipped separately from the existing congregations of All Saints Anglican Church, North Parramatta, which have worshipped at 8.00am, 10.00am and 7.00pm each Sunday.

31 At the time of the inauguration of St Paul's Multicultural Filipino-Anglican Ministry, the Fil-Aussie Christian Fellowship account had a credit balance of approximately $4,000. From this credit balance some $2,500 was paid to the St Paul's Anglican Church Building Fund to carry out repairs to the St Paul's Anglican Church, Harris Park. On 18 December 2002 an account in the name of St Paul's Multicultural Filipino-Anglican Ministry was opened at the Commonwealth Bank of Australia at Mt Druitt. The Fil-Aussie account was closed and the funds standing to the credit of that account were transferred to the St Paul's account.

The proceedings

32 None of the residuary beneficiaries in the will has indicated an objection to the plaintiff's application to the Court pursuant to s 63 of the Act since advice was given to them by letters dated 15 August 2008 that such an application was proposed. On 9 September 2008 the plaintiff's solicitors gave formal notice pursuant to s 63(11) of the Act to the Anglican Church Diocese of Sydney, St Paul's Multicultural Filipino-Anglican Ministry and to all of the beneficiaries named in the will. The Anglican Church Property Trust Diocese of Sydney and the Attorney General in and for the State of New South Wales appeared at the hearing before me and made submissions by their counsel. The plaintiff's solicitors have been informed by the plaintiff and other beneficiaries that the deceased has no next of kin as her husband, her parents, her grandparents and her brother predeceased her and she has no children or surviving aunts or uncles.

The Anglican Church Property Trust

33 Having been served with the summons commencing these proceedings, the Anglican Church Property Trust ("the Trust") is "able to participate in the proceedings to some extent": see Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 82 ALJR 1425 at [65]. The Trust submitted in the first instance that the proceedings should be reconstituted by joining it, Reverend Gayagay as a representative of persons comprising the Philippines and Australia Episcopal Church other than himself, the Attorney General for the State of New South Wales and a person to represent the deceased's next of kin. Such an approach would have required an adjournment for the purposes of a reconstitution. That did not occur. The Trust proceeded to make substantive submissions in the proceedings in their current form. It is convenient to deal with those submissions first.

34 The Trust contended that different questions should be addressed and answered. It proposed the following questions:

A. Did the deceased misdescribe the Fil-Aussie Christian Fellowship in cl 4(f) of the will?

B. Has the Fil-Aussie Christian Fellowship continued to exist?

C. Is the gift a gift for charitable purposes?

35 Extrinsic evidence is admissible in the construction of a will, and is admissible for the purposes of identifying persons and things to which a testator intended to refer: Re Tyrie, deceased (No 1) [1972] VR 168 at 186; Gerhady v South Australian Auxilliary to the British & Foreign Bible Society Inc (No 3) (1986) 44 SASR 195 at 204-206. Where an institution and its address are named in a will, the address may be considered as being only for the identification of the institution and as having no other significance: Re Flynn, deceased [1975] VR 633 at 638-639.

36 The Trust submitted that the evidence in these proceedings demonstrated that there was no church known as the Philippines and Australia Episcopal Church of Glendenning. The Fil-Aussie Christian Fellowship, which as at 27 July 1997 was functioning as an Area Mission of the Episcopal Church in the Philippines, had been meeting for over 12 months at the St Alban's Anglican Church Hall, Rooty Hill. The name "Philippines and Australia Episcopal Church" was Reverend Gayagay's description of the ecclesial relationship of the Fil-Aussie Christian Fellowship to the Episcopal Church in the Philippines and the Anglican Church of Australia until such time as it became part of the Diocese of Sydney.

37 The Trust submitted further that the name "Philippines and Australia Episcopal Church" was given to the deceased by her brother Mr Rand through Mr Carter. It will be recalled that in December 1996 when asked by Mr Carter about what name to call his church, because the deceased wished to include it in her will, Reverend Gayagay suggested the name "the Philippines and Australia Episcopal Church": see par [10] above. The Trust submitted that the unincorporated association Fil-Aussie Christian Fellowship was the organisation that the deceased intended to benefit by the gift contained in cl 4(f) of her will. She intended the address "Glendenning, New South Wales" to be a means of identification only, being the church under the leadership of Reverend Gayagay who lived there, and for no other purpose.

38 The fact that the name and address of an institution have changed does not mean that it ceases to exist: Flynn (supra) at 636-639. Where for all practical purposes the activity and operations of an institution have been continued without change notwithstanding that the institution may even have been dissolved and succeeded by another, the institution will be regarded as not having ceased to exist: Public Trustee v Cerebral Palsy Association of Western Australia Ltd [2004] WASC 36; (2004) 28 WAR 496 at [5]-[21], [40]; Cram Foundation v Corbett-Jones [2006] NSWSC 495 at [27]; Australian Executor Trustees Ltd v Ceduna District Health Services Inc [2006] SASC 286 at [18]-[19].

39 The Trust submitted that the evidence showed that the unincorporated association Fil-Aussie Christian Fellowship has continued to exist since 22 October 2002 notwithstanding its change of name to St Paul's Multicultural Filipino-Anglican Ministry and the changes to the place where it meets to St Paul's Anglican Church, Harris Park and All Saints Anglican Church, North Parramatta. The continuation of the activities of the Fil-Aussie Christian Fellowship after that date, the transfer of its funds from the Fil-Aussie account to the St Paul's account, and the agreement on essential matters between the Episcopal Church in the Philippines and the Anglican Church of Australia all serve to confirm that the Fil-Aussie Christian Fellowship has continued to exist since that date.

Consideration

40 In my opinion the unincorporated association Fil-Aussie Christian Fellowship was the organisation that the deceased intended to benefit by the gift contained in cl 4(f) of her will. Moreover, the change of name to St Paul's Multicultural Filipino-Anglican Ministry, and the other changes described above, does not indicate that it has for any of those reasons no longer continued to exist. St Paul's Multicultural Filipino-Anglican Ministry is the successor to the Fil-Aussie Christian Fellowship, which was misdescribed in the will of the deceased as the Philippines and Australia Episcopal Church. The material contained in the document described as the Written Undertaking of Evidence from Reverend Gayagay to the plaintiff's solicitors explains, in what appears to me to be a most credible and convincing way, how the name in cl 4(f) of the will of the deceased was chosen. The history of the unincorporated association since then has not to my observation served to eradicate the existence of the intended object of the gift. The letter to the plaintiff's solicitors dated 21 September 2007 from The Most Reverend Ignacio C. Soliba, Prime Bishop of the Episcopal Church in the Philippines is strong evidence that supports this.

41 One of the constants throughout the period since prior to the date of the will of the deceased has also been the continued connection of Reverend Gayagay with the unincorporated association by whatever name it may have been known, and whatever its location may have been, from time to time. It is clear from all of the available evidence that he was and apparently remains a driving force, and a personality of considerable influence, in the Filipino community centred (although by no means exclusively) around Rooty Hill. That community was a constant source of parishioners and communicants in the congregations over which he presided or which he served. There is no evidence to contradict or to cast any doubt upon assertions such as those made by Priti Pasupuleti that "St Paul's Multicultural Filipino-Anglican Ministry (the "Ministry"), then under its former name, the Philippine and Australian Episcopal Church, was formally recognised as an Anglican ministry of the Sydney Diocese". These types of pronouncement from someone in the position of the Legal Officer of the Anglican Church Diocese of Sydney in the context of these proceedings is strong adjectival support for the continuity of the organisation and for the fact that the deceased's description of the beneficiary in cl 4(f) of her will was in fact a misdescription of the Fil-Aussie Christian Fellowship.

Answers

42 I consider that the plaintiff would be justified in distributing the gift contained in cl 4(f) of the will of the deceased to St Paul's Multicultural Filipino-Anglican Ministry, a congregation of the All Saints Anglican Church in North Parramatta. It follows that I would answer the first question "Yes". It is unnecessary in the circumstances to answer the remainder of the questions.

Miscellaneous

43 However, the Trust has raised the issue of who or what may be the appropriate person or body to give a receipt to the plaintiff. It had submitted, in the context of its original contention that the proceedings should be reconstituted, that I make a declaration that the St Paul's Multicultural Filipino-Anglican Ministry is the successor of the Fil-Aussie Christian Fellowship and that I order by way of scheme that the balance of the share of residue given by cl 4(f) of the will of the deceased, after payment of the plaintiff's costs, be paid or transferred to the Trust to be applied to the St Paul's Multicultural Filipino-Anglican Ministry for its general purposes.

44 At the time when those submissions were made the plaintiff, and those others who appeared before me, obviously did not have the advantage of knowing my views on the questions upon which the advice of the Court was being sought. It seems to me that in the events that have occurred, and in the light of the views expressed on behalf of the Attorney General, and also having regard to the plaintiff's preference, communicated in open Court through her counsel, in favour of an expeditious completion of this matter and the winding up of the estate, that I should invite the parties to consider these reasons for judgment and to give consideration to what should then occur. It may then be possible to dispose of a number of otherwise outstanding matters by consent.

Orders

45 I answer the first question "yes". In the meantime I will in the circumstances do no more than publish these reasons for judgment and stand the proceedings over to a date suitable to the parties to be arranged in consultation with my Associate.

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Citations

The Estate of Dulcie Edna Rand (dec'd) [2009] NSWSC 48

Most Recent Citation

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Statutory Material Cited

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Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42

Gray v Australian Cancer Foundation for Medical Research [1999] NSWSC 492

CITATION:	The Estate of Dulcie Edna Rand (dec'd) [2009] NSWSC 48
HEARING DATE(S):	5 February 2009
JUDGMENT DATE :	16 February 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Harrison J
DECISION:	Question whether executor justified in distributing residuary gift to an unincorporated association misdescribed in the will answered 'yes'
CATCHWORDS:	WILLS – s 63 Trustee Act 1925 – judicial advice - residuary gift in will to unincorporated association – named beneficiary not in existence under that name at date of death of deceased – whether existing association with different name misdescribed by deceased in her will – whether existing association is successor to the named beneficiary – question whether executor justified in distributing gift to existing association - question answered 'yes'
LEGISLATION CITED:	Trustee Act 1925
CATEGORY:	Principal judgment
CASES CITED:	Australian Executor Trustees Ltd v Ceduna District Health Services Inc [2006] SASC 286 Cram Foundation v Corbett-Jones [2006] NSWSC 495 Gerhady v South Australian Auxilliary to the British & Foreign Bible Society Inc (No 3) (1986) 44 SASR 195 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 82 ALJR 1425 Public Trustee v Cerebral Palsy Association of Western Australia Ltd [2004] WASC 36; (2004) 28 WAR 496 Re Flynn, deceased [1975] VR 633 Re Tyrie, deceased (No 1) [1972] VR 168 at 186
PARTIES:	Faye Judith Carter as Executor and Trustee of The Estate of Dulcie Edna Rand (dec'd) (Plaintiff)
FILE NUMBER(S):	SC 4649 of 2008
COUNSEL:	D H Murr SC with T T Baw (Plaintiff) G O Blake SC (Anglican Church Property Trust Diocese of Sydney) B Nolan (Attorney General in and for the State of New South Wales)
SOLICITORS:	Holman Webb Lawyers (Plaintiff) Steven Lucas, Anglican Church Diocese of Sydney Sydney Diocesan Secretariat (Anglican Church Property Trust Diocese of Sydney) I V Knight, Crown Solicitor (Attorney General in and for the State of New South Wales)