THE ESTATE OF THE LATE BETTY CROSBY
[2019] SASC 189
•13 November 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
THE ESTATE OF THE LATE BETTY CROSBY
[2019] SASC 189
Judgment of Judge Bochner a Master of the Supreme Court
13 November 2019
CHARITIES - CHARITABLE GIFTS AND TRUSTS - VALIDITY AND PRACTICABILITY - NON-EXISTENCE OF OBJECTS - GIFT TO CHARITABLE INSTITUTION: INSTITUTION CEASING TO EXIST - GENERALLY
Testator left gift of residue of her estate to a number of charitable organisations which had ceased to exist either at the time of her death or after her death - whether deceased had demonstrated a general charitable intention to allow the gift to be applied cy-pres.
Held: general charitable intention demonstrated.
Re Tyrie deceased (No 1) [1972] VR 168; Attorney General (NSW) v Perpetual Trustee Co (Ltd) (1940) 63 CLR 209; In the Matter of Swan [2014] SASC 65, considered.
THE ESTATE OF THE LATE BETTY CROSBY
[2019] SASC 189
JUDGE BOCHNER. This is an application for advice and directions or, in the alternative, for the determination of a number of construction issues arising in the will of Betty Crosby (“the deceased”). In reaching this decision and preparing these reasons, I acknowledged the assistance provided by the most helpful submissions prepared by Mr Edmonds-Wilson, who appeared on behalf of the Public Trustee at the hearing of this matter.
The deceased died on 7 August 2009, leaving her last will dated 6 February 1962. Her husband predeceased her by some 39 years. Letters of administration with the will annexed were granted to the Public Trustee on 6 December 2011. Since that time, no children or other relatives have come forward. No investigations have been made to ascertain who would be entitled to receive all or part of the estate in the event that the deceased died wholly or partially intestate.
As at 14 June 2018, the Public Trustee held the sum of $414,507.89 on investment in its Common Fund for the estate.
On 15 May 2019, I made orders for the service of these proceedings on the various entities named as beneficiaries in the deceased’s will. FDN 5 and FDN 6 set out the steps that have been taken to serve the various entities by Mr Aiello, the plaintiff’s solicitor, and the responses that he has received from them. I am satisfied that all of the relevant entities have been served, and have had the opportunity to take part in this proceeding if they wished to do so.
At the time that the deceased made her will, she and her husband were living in Tasmania.
The will
Despite their length, it is necessary to set out clauses 3 and 4, of the will:
3. I GIVE AND BEQUEATH all moneys to my credit at any bacnk or banks to my trustee UPON TRUST to pay –
(a) my debts funeral and testamentary expenses and all duties payable in respect of my estate in exoneration of every gift hereby made
(b) the sum of Fifty pounds to THE LITTLE COMPANY OF MARY of Calvary Hospital New Town in Tasmania AND I DECLARE that the receipt of the Mother Superior for the time being shall be a good and sufficient discharge to my trustee
(c) the sum of Fifty pounds to THE GOOD SAMARITAN FUND at the Royal Hobart Hospital to be used at the discretion of the Almoner of the said Hospital AND I DECLARE that the receipt of the said Almoner shall be a good and valid discharge to my trustee
(d) the sum of One hundred pounds to the ROSICRUCIAN A.M.O.R.C Lodge at Hobart aforesaid to be used towards the building fund of the said Lodge or for the purpose of purchasing premises at Hobart aforesaid AND I DECLARE that the receipt of the Treasurer for the time being thereof shall be a good and sufficient discharge to my trustee
(e) the residue thereof to my husband the said CHARLES EDWARD CROSBY absolutely
4. SUBJECT to the provisions hereinafter contained concerning my stocks shares and debentures I GIVE AND BEQUETH the residue of my personal estate to my trustee UPON TRUST to sell call in and convert the same into money and to divide the net proceeds to be derived from such sale calling in and conversion into four equal parts or shares and –
(a) to pay three of those parts or shares to by husband the said CHARLES EDWARD CROSBY absolutely
(b) to divide the remaining part or share equally between the said ROSICRUCIAN A.M.O.R.C LODGE at Hobart aforesaid THE KENNERLY BOYS’ HOME at Hobart aforesaid THE SALVATION ARMY GIRLS’ HOME and THE SALVATION ARMY BOYS’ HOME both at Hobart aforesaid THE TASMANIAN SOCIETY FOR THE CARE OF CRIPPLED CHILDREN THE SPASTIC CHILDREN’S TREATMENT FUND in Tasmania THE TASMANIAN INSTITUTE FOR THE BLIND AND DEAF THE RETARDED CHILDREN’S WELFARE ASSOCIATION OF TASMANIA THE CLAREDON CHILDREN’S HOME at Kingston in Tasmania THE CONVENT OF THE GOOD SHEPHERD at Mt. Canice Sandy Bay in Tasmania and the BETHANY HOME FOR BOYS at Lindisfarne in Tasmania AND I DECLARE that the receipt of the Treasurer for the time being of each of the abovementioned Organisations and Societies shall be a good and sufficient discharge to my trustee
AND notwithstanding the provisions hereinbefore contained I DESIRE my trustee to retain as authorised investments in my estate all stocks shares and debentures held by me at the date of my death for a period of three years from the date of my death and during that period to accumulate all dividends and other income therefrom AND at the expiration of that period to sell the said stocks shares and debentures on the stock exchange and to divide the net proceeds to be derived from such sale together with the accumulated dividends and income thereof in the proportions above set forth AND I DECLARE that if my said husband shall predecease me or shall survive me but die before the expiration of the said period of three years the share to which he would have been entitled under this clause shall be equally divided between the Organisations and Societies mentioned in paragraph (b) of this Clause.[1]
[1] FDN2 at KWS1.
Clause 5 provided:
I DECLARE that the share of the said ROSICRUCIAN A.M.O.R.C. LODGE shall be used towards the building of or procuring the ownership of premises in Hobart aforesaid and that the share of the SPASTIC CHILDREN’S TREATMENT FUND shall be applied for the benefit of Spastic children in Tasmania and that the share of THE TASMANIAN INSTITUTE FOR THE BLIND AND DEAF shall be applied for the benefit of Children at that Institute and that the shares of each of the other Organisations and Societies shall be used to provide facilities or amenities for persons under their care and for providing accommodation for inmates at any home or homes conducted by those Organisations or Societies.[2]
[2] FDN2 at KWS1.
The clause 3 gifts
Clause 3 provides for three small pecuniary legacies. Even with the addition of interest, the amounts remain small. These gifts were to be paid from “all monies to my credit at any bank or banks”. At the time of the deceased’s death, the Public Trustee was administering her affairs as her enduring attorney. Her monies and other assets were held in the Public Trustee’s common fund. As at the date of death, it held on account of the deceased, $11,747.62 in its cash common fund and a cash balance of $103,431.33.[3]
[3] FDN 2 at [15]-[17] and KWS3.
I accept Mr Edmonds-Wilson’s submission that monies held by the Public Trustee as the deceased’s attorney are “moneys to my credit” within the meaning of clause 3 of the will. I also accept the submission that if the common fund was held in part in the form of cash investments with banking institutions this would amount to “moneys to my credit” at “any bank or banks”.
I turn now to the institutions named in clause 3 of the will.
Little Company of Mary Hospital
The evidence shows that at the time of the making of the will, there existed a Little Company of Mary Hospital at New Town in Tasmania.[4] There now exists a hospital in the suburb of Lenah Valley, Hobart, operated as part of Calvary Health Care Tasmania Limited, which in turn is a subsidiary company of the Little Company of Mary Health Care Limited.[5] Little Company of Mary Health Care Limited is a charitable not for profit organisation which provides health care.[6]
[4] FDN 2 at [31.2].
[5] FDN 2 at [31.4].
[6] FDN 2 at [31.5].
In my view, the legacy to the Little Company of Mary Hospital has not failed. The entity was in existence at the time that the will was made, and remains in existence to this day, albeit under a different corporate structure. The plaintiff is justified in paying the legacy to Calvary Health Care Tasmania Ltd.
The Good Samaritan Fund at the Royal Hobart Hospital
In relation to The Good Samaritan Fund at the Royal Hobart Hospital, it appears that no fund of this name has ever existed; however, at the time that the will was made, there existed a special purpose trust fund entitled the “Samaritan Fund for Patients” at the Royal Hobart Hospital.[7] The fund was originally established to support patients receiving a variety of treatment. Both the Royal Hobart Hospital, and the fund continue to exist; the fund now provides assistance to families who need to travel interstate for organ transplants, including to provide assistance with the cost of travel for such treatment.[8]
[7] FDN 2 at [34].
[8] FDN 2 at [34.2] – [34.3].
In my view, this gift has not failed. I am prepared to infer that in the will, the fund was misnamed, The Good Samaritan Fund, rather than giving it its correct name of the Samaritan Fund for Patients. The plaintiff would be justified in paying the legacy to the Royal Hobart Hospital for the purpose of the Samaritan Fund for Patients.
The Rosicrucian AMORC Lodge
The evidence shows that at the date that the will as made, no legal entity called “The Rosicrucian AMORC Lodge” existed in Australia, although there was an unincorporated Lodge in Hobart at that time. Since February 1996, there has existed in Australia a company called “Rosicrucian Order, AMORC Grand Lodge for Australia, Asia and New Zealand Limited ACN 072 728 968”[9] (“the Rosicrucian Order”). The company is a registered charity and exists for educative purposes. There is no longer a Lodge in existence in Hobart.
[9] FDN 2 at [48.1] – [48.5].
This legacy was to be used “towards the building fund of the said Lodge or for the purposes of purchasing premises at Hobart”. The evidence shows that the Rosicrucian Order continued to own property in Australia after the death of the deceased, although not in Hobart.[10]
[10] FDN 2 at KWS8.
I will deal with this legacy further below.
The clause 4 gifts
Clause 4 of the will divided the residue of the deceased’s estate into four equal parts, with three of those parts to be paid to the deceased’s husband. As he pre-deceased her, that gift failed. Thus, the alternative gift of those three parts is to be dealt with as follows:
…the share to which he would have been entitled under this clause shall be equally divided between the Organisations and Societies mentioned in paragraph (b) of this Clause…
The entirety of the residue is to be paid to the organisations set out in clause 4(b) of the will. I am of the view that the residue is to be divided into 11 shares; I consider that the Salvation Army Girls’ Home and the Salvation Army Boys’ Home are to be treated as each receiving a share, rather than one share between them. I take the view that they were grouped together (“The Salvation Army Girls’ Home and The Salvation Army Boys’ Home at Hobart”) merely to indicate that the beneficiary of each share was located in Hobart. I am also of the view that the 11 beneficiaries are tenants in common in equal shares.
Before I consider each of the institutions in turn, I must first address the principles which need to be applied to determine if any of the gifts set out in clause 4 have lapsed.
The question of the principles to be applied was addressed in Re Tyrie deceased (No 1).[11] Newton J identified the following rules and exceptions:
(1) A gift by will to a particular charitable institution simpliciter must be treated as a gift for the advancement of the charitable work or purpose of that institution: see Hardey v. Tory (1923), 32 C.L.R. 592; Smith v. West Australian Trustees Executors & Agency Co. Ltd, (1950), 81 C.L.R. 320; [1950] A.L.R 735; Re Godfree, [1952] V.L.R. 353; [1952] A.L.R. 595; Re Inman, [1965] V.R. 238; Sydney Homeopathic Hospital v. Turner (1959), 102 C.L.R. 188, at pp. 220-2 per Kitto J.; [1959] A.L.R. 782; and Stratton v. Simpson (1970)m 44 A.L.J.R. 487, especially at p. 488 per Windeyer, J., and pp. 495-6 per Gibbs, J.; [1971] A.L.R. 177, at pp. 119, 131-3.
(2) Nevertheless, a gift by will to a particular charitable institution (which I shall call “the named institution”)m which at some time existed, but had ceased to do so in the testator’s lifetime, whether before or after the date of his will, ordinarily lapses: see, for example, Re Ryner, [1895] 1 Ch. 19; [1891-4] All E.R. Rep. 328; re Harwood, [1936] Ch. 285; [1935] All E.R. Rep. 918; Re Slatter’s Will Trusts, [1964] Ch. 512; [1964] 2 All E.R. 469; Re Mills, [1934] V.L.R. 158, especially at pp. 158, 159; Re Ogilvy, [1953] 1 D.L.R. 44, at pp. 45, 46; Halsbury, 3rd. ed., vol. 4, pp. 279-280, and Tudor on Charities, 6th ed., pp. 259-260. The reason for this general rule appears to be that by designating the named institution as the done the testator has prima facie at least demonstrated an intention that the charitable work or purposes which he wishes to benefit are to be benefited through the instrumentality of the named institution and in no other manner: see, for example, Sobels v. Attorney-General, [1942] S.A.S.R. 251, at p. 255; and Re Ogilvy, [1953] 1 D.L.R. 44, at pp. 45. For convenience I shall hereafter refer to this general rule as “the lapse rule”.
(3) To the lapse rule there ar the following three exceptions, so far as material for present purposes:-
(A)If at the testator’s death there is in existence another institution which has taken over the work previously carried on by the named institution and which can properly be regarded as the successor of the named institution, and if the dominant charitable intention of ht etestator was wide enough to allow the gift to take effect in favour of the successor institution, then the gift will take effect in favour of the successor institution: see, for example, Re Watt, [1932] 2 Ch. 243; Sobels v. Attorney-General, [1942] S.A.S.R. 251; Tudor, op cit. pp. 261, 262 and 266, 267, and Halsbury, 3rd ed., vol. 4, p. 280, where it is stated that “there is no lapse where an institution which has ceased to exist was named merely on a particular charitable work which is still being carried on although by different persons or a different institution”.
For convenience I shall hereafter refer to this exception as exception (A).
(B)If upon the true interpretation of the will the testator intended that the gift should operate simply as an accretion to the assets of the named institution so as to become subject to whatever charitable trusts were from time to time applicable to those assets, and if after the named institution itself ceased to exist its assets remained subject to charitable trusts which were still on foot at the testator’s death, then the gift will be treated as taking effect as an accretion to any property which was at his death subject to those trusts: see, for example, Re Withall, [1932] 2 Ch. 236; Re Lucas [1948] Ch. 424; [1948] 2 All E.R. 22; Re Hutchinson’s Will Trusts, [1953] 1 All E.R. 996; Re Roberts, [1963] 1 W.L.R. 406; [1963] 1 All E.R. 674, and Halsbury, 3rd ed., vol. 4, p. 280; cf. Re Slatter’s Will Trusts, [1964] Ch. 512; [1964] 2 All E.R. 469, and Re Ogilvy, [1953] 1 D.L.R. 44. For convenience I shall hereafter refer to this exception as exception (B).
(C)If in cases not falling within exception (A) or (B), the testator is nevertheless found upon the proper interpretation of the will to have had a dominant intention to benefit work or purposes of the kind which the named institution carried out, notwithstanding that the named institution itself might no longer exist at his death, and if it is practicable as at the death of the testator to apply the gift for the benefit of work or purposes of that kind, and in a way which is in all respects consistent with any other elements of the dominant intention of the testator (or to put it in another way, consistent with any indispensable or essential elements of his charitable intention), then the gift will be so applied by means of a cy-pres scheme.[12]
[11] [1972] VR 168.
[12] [1972] VR 168 at 177-178.
As is set out below, a number of the institutions named in the will were in existence at the time the will was made, and were continuing in existence at the date of the deceased’s death. Others were in existence at the of the making of the will, but had been disbanded by the time of the deceased’s death, and yet others were in existence both at the time of the making of the will and at the time of the death, but have ceased to operate since that time.
Kennerley Boys Home
At the time that the will was made, there was in existence the Kennerley Boys Home in Hobart.[13] There now exists in Tasmania an entity called the Kennerley Children’s Home Incorporated. It is a registered charity.[14] It provides foster care and other care programmes for children. This is consistent with the purposes set out in clause 5 of the will.
[13] FDN 2 at [67.2].
[14] FDN 2 at [67.3]-[67.8].
I am prepared to conclude that, although the Kennerley Boys Home did not exist at the date of the deceased’s death, the Kennerley Children’s Home Inc has taken over its work and may properly be regarded as the successor institution.
The Public Trustee would be justified in paying the share of residue due to Kennerley Boys Home to Kennerley Children’s Home Inc, through the application of Newton J’s “Exception A”.
The Salvation Army Girls’ Home and The Salvation Army Boys’ Home
The named institutions were not in operation at the time of the deceased’s death. It appears, in fact, that they were never legal entities themselves but were care programmes operated by the Salvation Army, through the Salvation Army (Tasmania) Property Trust, which was established as a legal entity in 1930 and remains in existence.[15] While the named institution are no longer operated, the Salvation Army maintains other programmes which provide care for children, including small group homes.[16]
[15] FDN 2 at KWS15.
[16] FDN 2 at [71.6].
The entity to whom any gift would be payable, both at the time of the making of the will, and at the date of the deceased’s death, is The Salvation Army (Tasmania) Property Trust. I am satisfied that the Salvation Army would be able to give effect to the charitable purposes set out in clause 5 of the will.
The Public Trustee would be justified in paying two shares of the residue to the Salvation Army (Tasmania) Property Trust.
Tasmanian Society for the Care of Crippled Children
The Tasmanian Society for the Care of Crippled Children existed at the time of the making of the will, having been established in 1935. In 1988, it changed its name to Tascare Society for Children. On 5 June 1995, it was deregistered as a company limited by guarantee, and from 26 May 1995, the Tascare Society for Children Incorporated was incorporated as an incorporated association. It has remained in this form ever since. It is a registered charity.[17]
[17] FDN 2 at [74.1]-[74.6].
The entity thus existed at the date of the death of the deceased, despite its change in status. However, the Public Trustee has recently been advised that the Tascare Society for Children Inc is in the process of being voluntarily wound up.[18] Tascare Society for Children Inc has nominated TADTAS Inc to receive any benefit from the deceased’s will.[19] TADTAS is a registered charity.
[18] FDN 5 at [3.6.4].
[19] FDN 6 at [9]-[10].
As set out in Theobald on Wills:
If the institution existed at the testator’s death, but ceases to exist before the legacy is paid, the fund has become devoted to charity, and will be applied cy-pres irrespective of whether the will discloses a general charitable intention.[20]
[20] Theobald on Wills (17th edition, 2010) at [21-059].
TADTAS conducts activities which would enable it to give effect to the purposes set out in clause 5. As TasCare Society for Children Inc has nominated TADTAS to receive its assets on winding up, the Public Trustee would be justified in paying Tascare’s share of the residue to TADTAS.
The Spastic Children’s Treatment Fund
Clause 5 of the will requires the Spastic Children’s Treatment Fund to use its share “for the benefit of Spastic children in Tasmania”.
The Spastic Children’s Treatment Fund Committee was registered as a company in Tasmania in 1963, the year after the will was made.[21] It can be inferred that prior to this (and at the time that the will was made) the fund was an unincorporated body. It has been suggested that the fund was set up by parents and friends of children with cerebral palsy to organise and fund treatment for children.[22]
[21] FDN 2 at [77.1]-[77.2].
[22] FDN 2 at [77.2]
The Spastic Children’s Treatment Fund Committee underwent, over the years, a number of name changes, and is currently called Cerebral Palsy Tasmania. It is a registered charity.[23] It can be concluded, therefore, that Cerebral Palsy Tasmania is the proper recipient of the gift to the Spastic Children’s Treatment Fund.
[23] FDN 2 at [77.3]-[77.7].
However, it appears that on 8 March 2012, after the death of the deceased, Cerebral Palsy Tasmania resolved to transfer all of its assets to the Uniting Church in Australia Property Trust (Tas) trading as Uniting Care Tasmania.[24] The intention is that Cerebral Palsy Tasmania will be deregistered before the end of 2019. It is also intended that a public company limited by guarantee, known as Uniting (Victoria and Tasmania) Limited will take over the work carried out by Uniting Care Tasmania. The constitution of Uniting (Victoria and Tasmania) Ltd states that Uniting Care Tasmania incorporated entities including Cerebral Palsy Tasmania. This amalgamation took place on 1 July 2017.[25]
[24] FDN 5 at [3.7].
[25] FDN 5 at GAA14.
I am satisfied that Uniting (Victoria and Tasmania) Ltd may be regarded as a successor institution to Cerebral Palsy Tasmania. The Public Trustee would be justified in applying Cerebral Palsy Tasmania’s share to Uniting (Victoria and Tasmania) Ltd.
The Tasmanian Institute for the Blind and Deaf
At the time that the will was made, there existed an incorporated body called “The Tasmanian Society for the Blind and Deaf”. In 1963, the name was changed by legislation to “The Royal Tasmanian Society for the Blind and Deaf”, and in 1985, that organisation was dissolved and its property was vested in a company called “Royal Tasmanian Society for the Blind and Deaf”. This company is a registered charity. The 1985 legislation provides that a gift made in favour of the Tasmanian Institute for the Blind and Deaf is to take effect as if it had been made or declared to and in favour of the company, or for the use or purposes of the company.[26] Thus, the legislation gives the gift to the Royal Tasmanian Society for the Blind and Deaf.
[26] FDN 2 at [81.1]-[81.7].
Given the terms of clause 5, the Royal Tasmanian Society for the Blind and Deaf would be required to apply the fund for the benefit of children. There is nothing to suggest that this would not be possible.
The Public Trustee would be justified in paying one share of the residue to the Royal Tasmanian Society for the Blind and Deaf.
The Retarded Children’s Welfare Association of Tasmania
At the time that the will was made, an association by the name of the Retarded Children’s Association of Tasmania was in existence. In July 1962, the Retarded Children’s Welfare Association of Tasmania was incorporated. It subsequently underwent two changes of name. At the time that this action was commenced, it existed under the name, “Tasmanian Council on Intellectual Disability”. It is a registered charity.[27]
[27] FDN 2 at [90.1]-[90.5].
It appears, however, that on 5 September 2016, the companies making up Tasmanian Council on Intellectual Disability resolved to wind it up,[28] and that it has now been wound up.[29]
[28] FDN 2 at [94].
[29] FDN 6 at [4].
A company called Liviende Veranto, and known as Li-Ve Tasmania asserts that it is the successor to the Tasmanian Council on Intellectual Disability and so should be paid one share of the residue. It appears that Li-Ve Tasmania carries out charitable activities which would allow it to apply the gift for the purpose specified in clause 5.[30]
[30] FDN 2 at [93]-[95].
As the Tasmanian Council on Intellectual Disability was wound up after the death of the deceased, the gift does not fail. The Public Trustee would be justified in paying one share of the residue to Liviende Veranto.
The Clarendon Children’s Home at Kingston
The Clarendon Children’s Home was in existence at the time of the making of the will, located at Kingston. The Home had opened in 1923, and moved to its location at Kingston in 1945. It accommodated children over the age of three years. It operated pursuant to the Diocesan Children’s Home Ordinance 1960 of the Diocese of Tasmania of the Church of England.[31]
[31] FDN 2 at [103.1]-[103.6].
The Clarendon Children’s Home Inc was incorporated on 15 October 2005. The home ceased operating as a residential facility in December 2006, at which time the land on which it was situated was sold. The proceeds of sale were held by The Clarendon Children’s Home Inc. It is a registered charity.[32]
[32] FDN 2 at [103.13]-[103.17].
The Clarendon Children’s Home Inc is controlled by the Board of Management of the Bishop and Diocese of Tasmania. The role of the Home is to provide for the spiritual and material welfare of children, youth and families who are in special need. The Home no longer has children under its care and does not directly conduct any residential facility. It does, however, provide monies to third parties who provide support and care for children.[33]
[33] FDN 2 at [103.20]-[107].
In my view, these circumstances are sufficient to allow a conclusion that The Clarendon Children’s Home Inc is the successor institution to the Clarendon Children’s Home at Kingston. The Public Trustee would be justified in paying one share of the residue to The Clarendon Children’s Home Inc.
The Rosicrucian AMORC Lodge at Hobart
I return to the Rosicrucian AMORC Lodge at Hobart (“the Lodge”). At the time of the deceased’s death, there was no active Tasmanian branch of the Rosicrucian Order, although an incorporated entity remains in existence and operates as a charity in other parts of Australia.[34] I note that the purpose for the bequest to the Lodge was to build or procure “the ownership of premises in Hobart”. As the Rosicrucian Order has no current presence in Tasmania, it seems unlikely that this purpose can be given effect to.
[34] FDN 2 at [48.6]-[48.7].
In my view, the deceased, by the terms of her will, has demonstrated a general charitable intention, which will allow the gift to be applied cy-pres. The application of this principle was discussed by the High Court in Attorney‑General (NSW) v Perpetual Trustee Co (Ltd).[35] Latham CJ (noting that he was in the minority) described it in this way:
Before the cy-près doctrine can be applied it is necessary to find an expression of a general charitable intention in addition to a particular charitable intention. It must be possible to hold that, notwithstanding the failure of the particular means mentioned in the will or other instrument for the effectuation of the charitable intention there is an expression of a general charitable intention, even though it may be impracticable to give effect to the intention by such means.[36]
[35] (1940) 63 CLR 209.
[36] (1940) 63 CLR 209 at 216-217.
Dixon and Evatt JJ said the following:
If there are insuperable objections, either of fact or of law, to a literal execution of a charitable trust, it at once becomes a question whether the desires or directions of the author of the trust, with which it is found impracticable to comply, are essential to his purpose. If a wider purpose forms his substantial object and the directions or desires which cannot be fulfilled are but a means chosen by him for the attainment of that object, the court will execute the trust by decreeing some other application of the trust property to the furtherance of the substantial purpose, some application which departs from the original plan in particulars held not essential, and otherwise keeps as near thereto as may be. The question is often stated to be whether the trust instrument discloses a general intention of charity or a particular intention only. But in its application to cases where some particular direction or directions have proved impracticable, the doctrine requires no more than a purpose wider than the execution of a specific plan involving the particular direction that has failed. In other words, "general intention of charity" means only an intention which, while not going beyond the bounds of the legal conception of charity, is more general than a bare intention that the impracticable direction be carried into execution as an indispensable part of the trust declared.[37]
[37] (1940) 63 CLR 209 at 225.
I am persuaded that the deceased held a general charitable intention by a number of factors. Firstly, she allowed for no gift over the residue. Gray J, in In the Matter of Swan,[38] indicated that this was a relevant factor, and it my view, it is clearly relevant here. While the deceased turned her mind to a gift over in the event that her husband predeceased her, it appears that she did not consider that any of the gifts otherwise left in the will would fail.
[38] [2014] SASC 65 at [35].
Secondly, once the gift to her husband failed, all of the gifts in the deceased’s will were to charitable institutions of one type or another. This leads me to infer that the deceased’s intention was a general charitable one, and that she would not have wanted a partial intestacy because of failure of one of the gifts.
In my view, the gift to the Lodge should be applied cy-pres. The Rosicrucian Order would be a suitable trustee for the charitable purposes disclosed by the will, in that I am satisfied that it exists for the same educative purposes as the Lodge.
The Convent of the Good Shepherd at Mt Canice Sandy Bay
At the time that the will was made, the Convent of the Good Shepherd, an order of the Catholic Church, operated an institution at Mount Saint Canice. It was a residential institution for women and girls and operated a laundry. During the 1970’s the order ceased offering residential facilities, and when it moved to a new convent in 1981, gave the land and buildings at Mount Saint Canice to the Archdiocese of Hobart. In 2006, the land was transferred to Southern Cross Care (Tas) Inc, which has developed it into a retirement village. Southern Cross Care (Tas) Inc is a registered charity. The religious order referred to in the will was not operating in Tasmania at the time of the deceased’s death.[39]
[39] FDN 2 at [110.1]-[110.16].
It is not known whether the order operates in other parts of Australia.
In my view, it would not be appropriate for the gift to the Convent of the Good Shepherd to be paid to Southern Cross Care (Tas) Inc. As pointed out by Mr Edmonds-Wilson in his submissions, the only nexus between the two organisations is that they are both charities, and operated on the same land.[40]
[40] Plaintiff’s written submissions at [209].
However, I am of the view that, as with the gift to the Rosicrucian AMORC Lodge, and for the same reasons set out above, the gift to the Convent of the Good Shepherd was a gift for a general charitable purpose. As such, it should be applied cy-pres, and paid to Catholic Archdiocese of Hobart, to effect the purposes described in clause 5 of the will.
Bethany Home for Boys at Lindisfarne in Tasmania
The Churches of Christ operated the Bethany Boys’ Home at Lindisfarne from 1956. It was closed on 31 December 1978 and the land was sold. It appears that the church no longer operates any facilities for the residential care of children in Tasmania.[41] It seems, therefore, that it is not possible to carry out the charitable purpose for which the gift was left. There now exists an incorporated association called, “Churches of Christ in Victoria and Tasmania Inc”.
[41] FDN 2 at [115]-[116].
As with the gifts to entities dealt with in [49] and [55] hereof, I am of the view that a general charitable intention can be found. The gift should be paid to the Churches of Christ in Victoria and Tasmania Inc, on the basis that it will be able to effect the purpose described in the will.
Costs
In my view, the Public Trustee’s costs in this matter should be paid out of the residue of the estate.
Directions
I direct the Public Trustee to pay:
·The legacy referred to in clause 3(b) of the will to Calvary Health Care Tasmania Ltd.
·The legacy referred to in clause 3(c) of the will to Royal Hobart Hospital for the purpose of the Samaritan Fund for Patients.
·The legacy referred to in clause 3(d) of the will to Rosicrucian Order, AMORC Grand Lodge for Australia, Asia and New Zealand Limited ACN 072 728 968.
·The gift referred to in clause 4(b) to the Rosicrucian AMORC Lodge at Hobart to Rosicrucian Order, AMORC Grand Lodge for Australia, Asia and New Zealand Limited ACN 072 728 968.
·The gift referred to in clause 4(b) to the Kennerley Boys’ Home to Kennerley Children’s Home Inc.
·The gift referred to in clause 4(b) to The Salvation Army Girls’ Home to The Salvation Army (Tasmania) Property Trust.
·The gift referred to in clause 4(b) to The Salvation Army Boys’ Home to The Salvation Army (Tasmania) Property Trust.
·The gift referred to in clause 4(b) to The Tasmanian Society for the Care of Crippled Children to TADTAS Inc.
·The gift referred to in clause 4(b) to the Spastic Children’s Treatment Fund to Uniting (Victoria and Tasmania) Ltd.
·The gift referred to in clause 4(b) to The Tasmanian Institute for the Blind and Deaf to Royal Tasmanian Society for the Blind and Deaf.
·The gift referred to in clause 4(b) to The Retarded Children’s Welfare Association of Tasmania to Liviende Veranto.
·The gift referred to in clause 4(b) to The Clarendon Children’s Home to The Clarendon Children’s Home Inc.
·The gift referred to in clause 4(b) to The Convent of the Good Shepherd to Catholic Archdiocese of Hobart.
·The gift referred to in clause 4(b) to Bethany Home for Boys to Churches of Christ in Victoria and Tasmania Inc.
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