The Public Trustee as Executor of the Will of Cecily Patricia Lindsey (Dec) v Australian Conservation Foundation Inc
[2015] WASC 29
•2 FEBRUARY 2015
THE PUBLIC TRUSTEE as Executor of the Will of CECILY PATRICIA LINDSEY (Dec) -v- AUSTRALIAN CONSERVATION FOUNDATION INC [2015] WASC 29
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 29 | |
| Case No: | CIV:2385/2012 | ON THE PAPERS | |
| Coram: | McKECHNIE J | 2/02/15 | |
| 48 | Judgment Part: | 1 of 1 | |
| Result: | Questions answered | ||
| B | |||
| PDF Version |
| Parties: | THE PUBLIC TRUSTEE as Executor of the Will of CECILY PATRICIA LINDSEY (Dec) AUSTRALIAN CONSERVATION FOUNDATION INC CONSERVATION COUNCIL OF WESTERN AUSTRALIA INC WESTERN AUSTRALIAN NATURALISTS' CLUB (INC) MICHAEL BROWN as Executor of the Will of KATHLEEN DOROTHY HAYNES (Dec) GERALDINE FRANCES JORGENSEN as Executor of the Will of FRANCES JOSEPHINE GWYNNE (Dec) SUSAN JOY KIRK ROBERT MARSHALL LINDSEY SKYE CANDICE LINDSEY WESTCARE INC SOUTH-WEST FORESTS DEFENCE FOUNDATION INC CAMPAIGN FOR NATIVE FORESTS (INC) ENVIRONMENT HOUSE INC ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA GEOFFREY MALCOLM LINDSEY CAROLYN ROBERTA BUCHANAN |
Catchwords: | Wills Intention of testatrix Whether words of limitation or general Gift for charitable purposes Whether continues after entities cease Whether environmental matters are a charitable purpose Whether a scheme should be prepared |
Legislation: | Administration Act 1903 (WA), s 45 |
Case References: | Aid/Watch Inc v Commissioner of Taxation of the Commonwealth of Australia [2010] HCA 42; (2010) 241 CLR 539 Brennan v Permanent Trustee Co of New South Wales Ltd (1945) 73 CLR 404 Christina Maree Parnell as Executor of the Estate of Thomas Warnock Walker v Hinkley [2007] WASC 102 Commissioners for Special Purposes of Income Tax v Pemsel (1891) AC 531 Fell v Fell (1922) 31 CLR 268 Nicol v Chant (1909) 7 CLR 569 Public Trustee v Cerebral Palsy Association [2004] WASCA 36; (2004) WAR 496 Re Compton, Powell v Compton (1945) Ch 123 Re Duffell Equity Trustees Executors and Agency Co Ltd v Duffell [1926] VLR 489 Re Harrison, Turner v Hellard (1885) 30 Ch D 390 State Trustees Ltd v Attorney-General (Vic) [2013] VSC 117; (2013) 301 ALR 798 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : THE PUBLIC TRUSTEE as Executor of the Will of CECILY PATRICIA LINDSEY (Dec) -v- AUSTRALIAN CONSERVATION FOUNDATION INC [2015] WASC 29 CORAM : McKECHNIE J HEARD : ON THE PAPERS DELIVERED : 2 FEBRUARY 2015 FILE NO/S : CIV 2385 of 2012 MATTER : IN THE MATTER of s 45 of the Administration Act 1903 (WA)
and
IN THE MATTER of the estate of CICILY PATRICIA LINDSEY (Dec)
- Plaintiff
AND
AUSTRALIAN CONSERVATION FOUNDATION INC
First-named First Defendant
CONSERVATION COUNCIL OF WESTERN AUSTRALIA INC
Second-named First Defendant
WESTERN AUSTRALIAN NATURALISTS' CLUB (INC)
Third-named First Defendant
MICHAEL BROWN as Executor of the Will of KATHLEEN DOROTHY HAYNES (Dec)
Fourth-named First Defendant
GERALDINE FRANCES JORGENSEN as Executor of the Will of FRANCES JOSEPHINE GWYNNE (Dec)
Fifth-named First Defendant
SUSAN JOY KIRK
Sixth-named First Defendant
ROBERT MARSHALL LINDSEY
Seventh-named First Defendant
SKYE CANDICE LINDSEY
Eighth-named First Defendant
WESTCARE INC
Ninth-named First Defendant
SOUTH-WEST FORESTS DEFENCE FOUNDATION INC
Second Defendant
CAMPAIGN FOR NATIVE FORESTS (INC)
Third Defendant
ENVIRONMENT HOUSE INC
Fourth Defendant
CONSERVATION COUNCIL OF WESTERN AUSTRALIA INC
Fifth Defendant
ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA
Sixth Defendant
SUSAN JOY KIRK
ROBERT MARSHALL LINDSEY
GEOFFREY MALCOLM LINDSEY
CAROLYN ROBERTA BUCHANAN
Seventh Defendants
Catchwords:
Wills - Intention of testatrix - Whether words of limitation or general - Gift for charitable purposes - Whether continues after entities cease - Whether environmental matters are a charitable purpose - Whether a scheme should be prepared
Legislation:
Administration Act 1903 (WA), s 45
Result:
Questions answered
Category: B
Representation:
Counsel:
Plaintiff : Mr H J Finch
First-named First Defendant : No appearance
Second-named First Defendant : No appearance
Third-named First Defendant : No appearance
Fourth-named First Defendant : No appearance
Fifth-named First Defendant : No appearance
Sixth-named First Defendant : No appearance
Seventh-named First Defendant : No appearance
Eighth-named First Defendant : No appearance
Ninth-named First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendants : No appearance
Solicitors:
Plaintiff : Solicitor for Public Trustee
First-named First Defendant : Arnold Bloch Leibler
Second-named First Defendant : King & Wood Mallesons
Third-named First Defendant : No appearance
Fourth-named First Defendant : No appearance
Fifth-named First Defendant : No appearance
Sixth-named First Defendant : Amicus Lawyers
Seventh-named First Defendant : Amicus Lawyers
Eighth-named First Defendant : Intention to abide result
Ninth-named First Defendant : No appearance
Second Defendant : Rattigan Lawyers
Third Defendant : No appearance
Fourth Defendant : C & G Miocevich Law Offices Pty Ltd
Fifth Defendant : King & Wood Mallesons
Sixth Defendant : State Solicitor for Western Australia
Seventh Defendants : Amicus Lawyers
Case(s) referred to in judgment(s):
Aid/Watch Inc v Commissioner of Taxation of the Commonwealth of Australia [2010] HCA 42; (2010) 241 CLR 539
Brennan v Permanent Trustee Co of New South Wales Ltd (1945) 73 CLR 404
Christina Maree Parnell as Executor of the Estate of Thomas Warnock Walker v Hinkley [2007] WASC 102
Commissioners for Special Purposes of Income Tax v Pemsel (1891) AC 531
Fell v Fell (1922) 31 CLR 268
Nicol v Chant (1909) 7 CLR 569
Public Trustee v Cerebral Palsy Association [2004] WASCA 36; (2004) WAR 496
Re Compton, Powell v Compton (1945) Ch 123
Re Duffell Equity Trustees Executors and Agency Co Ltd v Duffell [1926] VLR 489
Re Harrison, Turner v Hellard (1885) 30 Ch D 390
State Trustees Ltd v Attorney-General (Vic) [2013] VSC 117; (2013) 301 ALR 798
1 McKECHNIE J: Cecily Lindsey was a supporter of conservation causes, so much so that in her Will dated 21 March 1985 she bequeathed investments and named bank accounts to various conservation groups.
2 By the time she passed away 23 years later, some of the financial entities had changed, as had some of the proposed beneficiaries.
3 The Public Trustee as executor seeks direction from the court to questions that have arisen: Administration Act 1903 (WA) s 45.
4 In answering those questions I am conscious of a statement attributed to Eve J that 'I would hate to meet in the hereafter those testators whose wishes I have frustrated on earth'. But I think Ms Lindsey's intentions are clear enough.
5 The defendants named in the action, with the exception of the Attorney General, are actual or potential beneficiaries.
6 Most parties have filed comprehensive written submissions and all are content for the action to be determined on the written material without a hearing.
7 The task of fact-finding has been simplified because the parties have submitted a statement of agreed facts.
8 These facts are amplified by annexures to the Public Trustee's affidavit sworn 13 August 2012.
Statement of Agreed Facts
1. Executor
The Public Trustee is the executor of the Will of CECILY PATRICIA LINDSEY late of 9 Caufield Street, Albany in the State of Western Australia who died on 21 November 2008, a grant of probate of her will dated 21 March 1985 having been made by the Supreme Court in its probate jurisdiction to it on 24 July 2009. (Paragraph 3 of and attachment 'SWC1' to the affidavit of Shaun William Conlin sworn 13 August 2012).
2. Will
(1) The deceased's will provided in part:
"Of my investments, Albany branch of the R. & I. Bank balances and moneys in my name with the W.A. Teachers' Credit Society, 148 Adelaide Tce, Perth. W.A. and the Australian Commission & Public Service Credit Society Ltd., GPO Box S.1315, Perth. W.A. I give unto:-
1. Australian Conservation Foundation, 672B Glenferrie Road, Hawthorn Victoria. 3122 seven thirtysixths (7/36) share,
2. Western Australian Campaign to Save Native Forests, 794 Hay Street, Perth. W.A. five thirtysixths (5/36) share,
3. Western Australian Conservation Council, 794 Hay Street, Perth. WA five thirtysixths (5/36) share,
4. Western Australian Environment Centre, 794 Hay Street, Perth. W.A. five thirtysixths (5/36) share,
5. Western Australian Naturalists' Club, P.O. Box 156, Nedlands W.A. five thirtysixths (5/36) share,
6. Kathleen Daisy Haynes, 29 Marian Avenue, Armadale, Western Australia. two thirtysixths (2/36) share,
7. Francis Josephine Gwynne, 9 Alexander Road, Dalkeith Western Australia. two thirtysixths (2/36) share,
8. My brother Thomas Malcolm Lindsey, Cowderoy Street, Melros. West. Australia. one thirtysixth (1/36) share,
9. Francis Robert Lindsey, 59 Park Street Como.W.A. my brother, one thirtysixth (1/36) share,
10. My Great niece Skye Candice Lindsey, 16 Barbican Street, Shelly, Western Australia. one thirtysixth share (1/36) share.
11. Tuberculosis & Chest Association of W.A. Inc., 75 Carrington Street, Nedlands W.A. one thirtysixth (1/36) share,
12. Patricia M. Hughes, 23 Ewell Way, Totton. Hants. England, one thirtysixth (1/36) share,
I also give unto:-
13. Albany Historical Society, P.O. Box 411, Albany. West. Australia. my house and its contents at 15 Suffolk Street, Albany. W.Aust. and
14. H.C. and J. Gregory, 35 Flemington Street, Albany. West. Australia my Suzuki Van Reg. No. A.19818."
(Paragraphs 4 and 5 of and attachment 'SWC1' to the affidavit of Shaun William Conlin sworn 13 August 2012).
(2) There is no residue clause in the deceased's will.
(3) The Seventh Defendants take any of the deceased's estate as to which she died intestate, pursuant to Section 14 of the Administration Act 1903. (Paragraphs 9 and 5(9) of and attachment 'SWC6' to the affidavit of Shaun William Conlin sworn 13 August 2012).
3. Western Australian Campaign to Save Native Forests
(1) Between 1975 and the 1990's there was an organisation in Western Australia named Campaign to Save Native Forests which was not incorporated and which was the second listed beneficiary. (Paragraph 6(1) of and attachment 'SWC11' to the affidavit of Shaun William Conlin sworn 13 August 2012).
(2) There is no sworn evidence as to the objects and purposes of Campaign to Save Native Forests, although the Public Trustee has received some documentary evidence in this regard (Paragraph 6 of the affidavit of Shaun William Conlin sworn 13 August 2012).
4. South-West Forests Defence Foundation Inc
(1) The Second Defendant, South-West Forests Defence Foundation Inc was incorporated on 20 September 1983. (Paragraph 6(2) of and attachment 'SWC12' to the affidavit of Shaun William Conlin sworn 13 August 2012).
(2) The constitution of the Second Defendant South-West Forests Defence Foundation Inc shows its objects. (Paragraph 6(3) of and attachment 'SWC13' to the affidavit of Shaun William Conlin sworn 13 August 2012).
5. Campaign for Native Forests Inc
(1) The Third Defendant, Campaign for Native Forests Inc was incorporated on 18 December 1998. (Paragraph 6(4) of and attachment 'SWC14' to the affidavit of Shaun William Conlin sworn 13 August 2012).
(2) The Constitution of the Third Defendant Campaign for Native Forests Inc shows its objects. (Paragraph 6(5) of and attachment 'SWC15' to the affidavit of Shaun William Conlin sworn 13 August 2012).
6. Western Australian Environment Centre
(1) There was an incorporated association between 12 February 1975 and 9 November 2004 named Environment Centre of W.A. (Inc), which was the fourth listed beneficiary. (Paragraph 7(1) of and attachment 'SWC16' (pages 55, 64) to the affidavit of Shaun William Conlin sworn 13 August 2012).
(2) The Constitution and Rules show its objects. (Paragraph 7(1) of and attachment 'SWC16' (pages 56-62) to the affidavit of Shaun William Conlin sworn 13 August 2012)
7. Environment House Incorporated
(1) The Fourth Defendant Environment House Incorporated was incorporated on 11 January 2002. (Paragraph 7(2) of and attachment 'SWC17' to the affidavit of Shaun William Conlin sworn 13 August 2012).
(2) The Constitution and Rules of the Fourth Defendant Environment House Incorporated show its objects. (Paragraph 7(3) of and attachment 'SWC18' to the affidavit of Shaun William Conlin sworn 13 August 2012).
8. Conservation Council of Western Australia Inc
(1) The Constitution and Rules of the Fifth Defendant Conservation Council of Western Australia Inc as at the deceased's death show its objects as at the deceased's death. (Paragraph 8(2) of and attachment 'SWC20' to the affidavit of Shaun William Conlin sworn 13 August 2012).
(2) The Constitution and Rules of the Fifth Defendant Conservation Council of Western Australia Inc as at present show its objects as at present. (Paragraph 8(3) of and attachment 'SWC21' to the affidavit of Shaun William Conlin sworn 13 August 2012).
9. Assets as at Date of Death
(1) The deceased's assets as at the date of her death were as follows: (Paragraph 10(1) of and attachment 'SWC 22' to the affidavit of Shaun William Conlin sworn 13 August 2012).
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(2) The deceased's house property, motor vehicle and furniture and effects have been sold and the proceeds of sale distributed to the Seventh Defendants (assets numbered 1, 2 and 24) (Paragraph 10(2) of the affidavit of Shaun William Conlin sworn 13 August 2012);
(3) The deceased acquired all the other assets held by her at her death (other than possibly her bank accounts) after the date of her will. (Paragraph 10(3) of and attachment 'SWC23' to the affidavit of Shaun William Conlin sworn 13 August 2012);
- 10. Assets as at Date of Will
(1) The Public Trustee disposed of most of the deceased's financial records that did not relate to assets the deceased owned at the date of her death without searching for records in relation to assets she owned at the date of her will (Paragraph 11(4) of the affidavit of Shaun William Conlin sworn 13 August 2012).
(2) Amongst the deceased's financial records now held, the Public Trustee has located one page of handwritten records only in relation to assets the deceased owned before the will was made. Those assets are recorded as having all been sold in 1986 except for some shares in Strata Oil NL (later known as Doval Resources Ltd and then Devex Limited) which appear to have been sold in 1995. (Paragraphs 11(1), 11(2) and 11(3) of and attachments 'SWC24' and 'SWC25' to the affidavit of Shaun William Conlin dated 13 August 2012.
(3) In 1986 the deceased sold some shares in Hill 50 Goldmine NL, Charter Mining NL, Haoma North West NL, Straits Oil and Gas Ltd and Strata Oil NL (Paragraph 11(2) of and attachment 'SWC24' to the affidavit of Shaun William Conlin sworn 13 August 2012).
11. Albany Branch of the R & I Bank balances
(1) The deceased's account no. 001-501107-8 Bank of Western Australia Ltd (trading as Bankwest) was opened in 1994 at its Albany Branch. (Paragraph 13(1) of and attachment 'SWC26' to the affidavit of Shaun William Conlin sworn 13 August 2012);
(2) The deceased held:
• that account with BankWest from 1994. (Paragraph 13(2) of and attachment 'SWC27' to the affidavit of Shaun William Conlin sworn 13 August 2012);
• two term deposits with the Albany branch of Bankwest between 1995 and 1998. (Paragraph 11(2) of and attachment 'SWC28' to the affidavit of Shaun William Conlin sworn 13 August 2012).
(3) A reference in a document of any kind to the R & I Bank of Western Australia Limited is to be construed as if it had been amended to be, or to include, a reference to the name of the Bank of Western Australia Limited. (Sections 19 and 38 of the Bank of Western Australia Act 1995, (WA)).
12. W.A. Teachers' Credit Society
(1) The deceased had no account with WA Teachers' Credit Society at her death. (Paragraph 14(1) of the affidavit of Shaun William Conlin sworn 13 August 2012 and paragraph 9 above).
(2) The WA Teachers' Credit Society was acquired by the R & I Bank in 1987. (Paragraph 14(2) of an attachment 'SWC29' to the affidavit of Shaun William Conlin sworn 13 August 2012).
(3) The only asset of the estate which may pass under the description 'moneys in my name with the WA Teachers' Credit Society' is the Bankwest account.
(4) The facts in paragraph 11 are repeated and also referred to.
13. Australian Commission & Public Service Credit Society Ltd
(1) There is no entity named Australian Commission & Public Service Credit Society Ltd. (Paragraph 15(1) of and attachment 'SWC30' to the affidavit of Shaun William Conlin sworn 13 August 2012).
(2) The relationship of ACPS Credit Society Ltd with Bank of Queensland is as follows:
• ACPS Credit Society Ltd [Australian Commissions and Public Service] was formed in 1961;
• ACPS Credit Society Ltd merged with Telecommunications Credit Union in 1985 or 1986 and became known as Auscom Credit Society Ltd;
• Auscom Credit Society Ltd merged with API Members Credit Society and became known as API - Auscom Credit Society in 1991;
• API - Auscom Credit Society merged with CSA Credit Union and became Statewest Credit Society Ltd in 1995;
• Statewest Credit Society Ltd merged with Home Building Society in 2006;
• Home Building Society merged with Bank of Queensland in 2007. (Paragraph 15(2) of and attachment 'SWC31' to the affidavit of Shaun William Conlin sworn 13 August 2012).
(3) The reference in the will to 'GPO Box S 1315 Perth WA' may be a reference to the postal address of StateWest Credit Society. (Paragraph 15(3) of and to attachment 'SWC32' to the affidavit of Shaun William Conlin sworn 13 August 2012).
(4) Bank of Queensland has advised in relation to the assets held by the deceased in that bank that they originated from assets with Home Building Society which had been taken over by Bank of Queensland but that it had no information as to where the assets with Home Building Society originated from. (Paragraph 15(4) of and attachment 'SWC33' to the affidavit of Shaun William Conlin sworn 13 August 2012).
(5) The deceased held:
• an account with StateWest Credit Society from before 1998 until at least 2005. (Paragraph 15(5) of and attachment 'SWC34' to the affidavit of Shaun William Conlin sworn 13 August 2012).
• shares in Home Building Society issued when it amalgamated with StateWest Credit Society in 2007. (Paragraph 15(5) of and attachment 'SWC35' to the affidavit of Shaun William Conlin sworn 13 August 2012).
9 There are settled principles of construction of wills. The principle rule of construction is to give effect to the intention of the testator as expressed in the words of the Will having regard to the entire document. Words are to be interpreted in the context in which they appear according to their usual or primary meaning.
10 Relevant principles were conveniently set out by Newnes M in Christina Maree Parnell as Executor of the Estate of Thomas Warnock Walker v Hinkley [2007] WASC 102:
The Will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the Will, read in the light of the circumstances in which the Will was made. The language employed in the Will should be read in the sense which the testator appears to have attached to the expressions used, albeit it is not to be construed on the basis of what it is suspected the testator intended, other than as expressed in the terms of the Will: Fell v Fell (1922) 31 CLR 268 at 273; WA Trustee, Executor & Agency Co Ltd v Birkbeck (1921) 23 WALR 27 at 29, 31 - 32; Perrin v Morgan [1943] AC 399 at 406, 414 - 415, 416, 420; Borlaug v The University of Western Australia [2001] WASCA 425 at [15]. The overriding consideration is the language used by the testator and the Court can neither ignore the plain meaning of words nor unnecessarily introduce words to give effect to an intention that is not expressed: In re Crocombe (decd) [1949] SASR 302 at 315.
The proper approach is first to construe the Will having regard to its actual language, content and circumstances, and only to have regard to canons of construction and other decisions on the meaning of a word or phrase in the case of ambiguity: WA Trustee, Executor & Agency Co Ltd v Birkbeck (supra); Perrin v Morgan (supra); Borlaug v The University of Western Australia (supra). In Perrin v Morgan, Viscount Simon LC said:
"… the duty of a judge who is called on to interpret a will containing ordinary English words, is not to regard previous decisions as constituting a sort of legal dictionary to be consulted and remorselessly applied whatever the testator may have intended, but to construe the particular document so as to arrive at the testator's real meaning according to its actual language and circumstances."
As each will is to be construed having regard to its own particular language, content and circumstances, the meaning given to a word or expression in other cases will often be of little assistance. That will particularly be so where the will to be construed has been drawn by a layperson who is unlikely to have been aware of the meaning given in other cases: see Re Taylor; Taylor v Tweedie [1923] 1 Ch 99 at 105, 109 - 110; Perrin v Morgan (supra) at 407; In re Crocombe (decd) (supra) at 315; Borlaug v The University of Western Australia (supra) at [45] - [48]. Accordingly, where a testator has made a will without professional assistance, the expressions used in the will should not be construed literally and technically: Re Taylor; Taylor v Tweedie (supra). And where it is appropriate to consider the meaning of a word given in an earlier case, regard must be had to any change in circumstances or in the use of language: Perrin v Morgan (supra) at 417 - 418.
There is a presumption against intestacy, namely that the will should, if possible, on a fair and reasonable construction, be construed so as to lead to a testacy rather than an intestacy or partial intestacy: Fell v Fell (supra) at 275 - 276, 284; Hamersley v Newton (2005) 30 WAR 568 at 583. But the presumption against intestacy "is not a strong presumption": Marks v Pope [2001] NSWSC 105 at [17]. A court should not lean too heavily against a construction that produces an intestacy and, cannot, in order to avoid an intestacy, misconstrue the language of the will: In re Edwards; Jones v Jones [1906] 1 Ch 570 at 574; Re Wragg (decd); Hollingsworth v Wragg [1959] 1 WLR 922 at 929. [12] - [15].
11 There are further rules of construction in the Wills Act 1970 (WA) pt 7 relevantly s 26(1):
Unless the contrary intention appears by the will -
(a) the will is to be construed, with reference to the property comprised in it, to speak and take effect as if it has been executed immediately before the death of the testator;
(b) property that is the subject of a disposition, other than the exercise of a power of appointment, that is void or fails to take effect is to be included in any residuary disposition contained in the will;
(c) a general disposition of land or of the land in a particular area includes leasehold land whether or not the testator owns freehold land;
…
28A. Use of extrinsic evidence to clarify a will
(1) In proceedings to construe a will, evidence, including evidence of the testator’s intention, is admissible to the extent that the language used in, or other content of, the will renders the will or any part of the will -
(a) meaningless;
(b) ambiguous on the face of the will; or
(c) ambiguous in the light of the surrounding circumstances.
(2) Evidence of a testator's intention is not admissible to establish any of the circumstances referred to in subsection (1)(c).
(3) Nothing in this section prevents evidence that is otherwise admissible at law from being admissible in proceedings to construe a will.
(4) This section applies to the will of any person dying on or after the day on which section 22 of the Wills Amendment Act 2007 comes into operation, whether the will was made or executed before, on or after that day, but does not apply to the will of a person who died before that day.
The issues to be determined by the court
13 The parties have submitted an amended statement of issues which are framed as questions. There is no issue for determination by the Court in relation to real and personal estate already distributed by the Public Trustee as described in paragraph 9(2) of the statement of agreed facts. This was described as Issue A.
Issue B. Assets
Question B.1.
Is the wording in the will equivalent to:
(1) 'I leave the following of my investments (namely ...)'. (Enumeration of particulars principle).
(2) 'I leave all my investments I own at the date of my will (including ....)';
or
(3) 'I leave all my investments I own at the date of my death (including ...)'
(section 26(a) of the Wills Act 1970.)
3. The reference to 'Bank balances' and 'moneys':
• was not intended to substitute a definite and precise statement for the antecedent generality of the 'investments', because there are no words such as 'namely' or otherwise to indicate that, and the will is otherwise well structured grammatically;
• was intended to pass either 'investments (including Bank balances and moneys)' or alternatively 'investments together with Bank balances and moneys', because the wording suggests a list of assets ('investments … Bank balances and moneys …').
…
5. A generic gift is one of property capable of increase or decrease or of otherwise changing during the testator's lifetime, and passes all property answering the description at the death of the testator, including any answering the description acquired after the date of the will.
6. The use of the word 'my' does not show a contrary intent if the gift is generic, but may show that the gift is not generic, particularly where the gift is of a specific thing existing at the date of the will.
7. (i) Douglas v Douglas (1854) Kay 400
The equivalent provision in the Wills Act 1837 was held not to apply where the gift was specific and intended to refer to the date of the will.
- (ii) Pohlner v Pfeiffer (1962) 112 CLR 52
'a description may be generic … either because it denotes a class or form of property capable of increase or decrease … or because it denotes in general terms an item of property of a kind that the testator commonly replaced periodically … A gift that is generic will carry anything that the testator had at his death which answers to the description' (per Windeyer J at p79).
and
'whether or not a contrary intention appears depends upon the meaning of the will construed according to ordinary principles of construction, and in the light of any extrinsic evidence properly admissible of facts, known to the testator, that existed at the time he made his will' (per Windeyer J at p77).
(iii) Lady Langdale v Briggs (1856) 8 De GM&G 391
A gift of 'my leasehold' property was held to cover leasehold property acquired after the will was made, the word 'my' not being sufficient to indicate a contrary intention under the statute.
(iv) Goodlad v Burnett (1855) 1 K&J 341
'When a bequest is of that which is generic - of that which may be increased or diminished, then I apprehend, the Wills Act requires something more on the face of the will for the purpose of indicating such 'contrary intention' than the mere circumstance that the subject of the bequest is designated by the pronoun 'my' (per Sir W Page Wood VC at p349).
• the testatrix is unlikely to have intended to pass investments or bank accounts she owned at the date of her will but not those she acquired subsequently;
• assets fitting the description of 'investment' are capable of increase or decrease or change;
• the words 'Bank balances' and 'moneys in my name' can only refer to the balances and moneys at the date of death;
• there are no words indicating a contrary intent under the section.
16 The Australian Conservation Foundation (ACF) agrees with the plaintiff's submissions and would construe the Will in accordance with Question B.1.(3). It submits in reliance on Re Duffell Equity Trustees Executors and Agency Co Ltd v Duffell [1926] VLR 489 that an incomplete enumeration of items of a personal estate will not cut down or limit a general gift disposed by the will. It submits:
10. There is a strong presumption against adopting an interpretation of a will which will lead to intestacy or a partial intestacy. The Court is guided by that presumption to adopt a construction of a will that avoids intestacy.
11. The presumption against intestacy or a partial intestacy is applied where a testator executes a will in an appropriate form and there is no expressed intention that he or she intended to die intestate.
12. The interpretation contained in subparagraph 1(1) of the Statement of Issues would result in the majority of the estate passing under partial intestacy.
13. The interpretation contained in subparagraph 1(3) of the Statement of Issues would result in the majority of the remaining estate passing under the Will.
14. The presumption against intestacy supports interpretation 1(3) of the Statement of Issues.
17 It further submits:
19. The Will demonstrates that the testatrix intended to implement a scheme whereby her financial assets (ie shareholdings and bank accounts), are allocated amongst a list of beneficiaries (predominantly charities).
18 The ACF submits, and I find, that Ms Lindsey owned shares at the time of the making of her Will in 1985 which she regarded as investments. There is a handwritten list of shares which is entitled 'Reply Paid Addresses for Investments - CP Lindsey'.
19 It is submitted:
25. There is no evidence that the testatrix intended for only some of her assets to be dealt in the Will and for other assets to be distributed according to the rules of intestacy (eg, her shares).
20 The Conservation Council supports a construction of the Will as equivalent to Question B.1.(3) as does Environment House Inc.
21 The Attorney General does not make any submissions on Question B.
22 The seventh defendants take a contrary stand on Question B.1. They are the four residuary beneficiaries on a partial intestacy.
23 They cite Nicol v Chant (1909) 7 CLR 569:
The question to be determined is purely one of construction. In construing a will the first duty of the Court is to examine it, and to discover the meaning of the language of the testator as applied to the circumstances existing at the date of the will, and to give effect to the intention so discovered unless some authoritative rule of law or construction requires a different conclusion.
24 They submit that:
3. If words or phrases in a will are clear and unambiguous effect is to be given to them irrespective of the result.
25 In Brennan v Permanent Trustee Co of New South Wales Ltd (1945) 73 CLR 404 (Dixon J):
The language of the testator should be moulded to carry into effect as far as possible the intention which, in the opinion of the Court, the testator has, on the whole will, sufficiently declared.
26 The seventh defendants acknowledge the presumption against intestacy but note that a court cannot guess what the intention of the testator was at the date of the Will. They disagree with the relevance of 'old fashioned wording'.
27 The seventh defendants put great store on the word 'of'.
28 They submit that:
8. 'Of' is a preposition that is used ordinarily and commonly to express the relationship between a part and a whole.
- and cite The Macquarie Dictionary (1982) in support.
9. As a general rule applicable to all kinds of documents, the words used in it are in the first place to be given ordinary grammatical meaning.
30 They support reading the disputed phrase in Question B.1. as equivalent to Question B.1.(1).
Answer to Question B.1.
31 As outlined in their submissions all parties contend that the Will must be read as a whole and that the ultimate search is for the intention of the testator gleaned from the words used.
32 In that quaint and old fashioned notion, 'the judge puts himself in the armchair of the testator'.
33 The Will contains effectively three dispositions:
• All expenses and debts are to be paid.
• There are twelve specific bequests of money divided into 36 shares.
• There are bequests of house and car, two items that could not fall under the heading 'Investments'.
34 The predominant description in the Will is 'my investments', a general description. The four matters mentioned in the paragraph are a list and the word 'investments' is simply the first in the list. It would defeat the testatrix's intention to read the paragraph restrictively.
35 The concentration on the word 'of' by the seventh defendants, with respect, fails to allow a reading of the Will in context and as a whole. Ms Lindsey used commas indicating an inclusive list not a restrictive one. She was precise about the shares of her liquid property she wanted distributed. There was no point in her reserving other liquid assets (if she had any) from the words of her second disposition, especially when, in that disposition, she expressly provided for natural persons who might take in a partial intestacy.
36 The phrase 'of my investments' in context means no more than a reference to the testatrix's property other than her house and contents and her Suzuki van.
37 The effect of the Wills Act 1970 (WA) s 26(1)(a) is to regard a Will as ambulating unless a contrary intention appears. No contrary intention does appear. I find that Ms Lindsey's intention was to dispose of all her liquid assets in the proportion of the whole that she described as 36th shares. There is no evidence that she ever made another Will even though Ms Lindsey lived for some time and acquired further assets. There is no contrary intention expressed to prevent reading the Will as executed immediately before her death. Her obvious intention was to divide her liquid assets in the shares specified.
38 Put simply, I do not read the word 'of' as a word of restriction.
39 The answer to Question B.1. is:
40 The wording of the Will is equivalent to (3) 'I leave all my investments I own at the date of my death including …'.
Question B.2.
If the answer to question 1 is (1) or (2), which of the following assets pass under the wording 'moneys in my name with … the Australian Commission & Public Service Credit Society Ltd GPO Box S1315, Perth':
(1) the Bank of Queensland Premier Investment account (no. 4 on the Schedule of Assets and Liabilities)?
(2) the Bank of Queensland Reserve Charges account (no. 5 on the Schedule of Assets and Liabilities)?
(3) the Bank of Queensland shares (no. 10 on the Schedule of Assets and Liabilities)?
(4) the Bank of Queensland dividend to date of death (no. 45 on the Schedule of Assets and Liabilities)?
- Answer: Unnecessary to answer.
Question B.3.
If the answer to question 1 is (1) or (2), does the Bankwest Reward Pension Saver Account 306-001-50-1107-8 pass under the wording 'moneys in my name with … Albany branch of the R & I Bank balances and moneys in my name with the WA Teachers' Credit Society, 148 Adelaide Tee, Perth WA'?
- Answer: Unnecessary to answer.
41 But by way of observation, the history of the accounts outlined in the statement of agreed facts satisfies me that the assets listed as the Australian Conservation and Public Service Credit Society Ltd can be traced through to the Bank of Queensland accounts, albeit they would have increased between the date of the Will and death. The R&I Bank, Albany branch and the WA Teachers Credit Society are both traced through to the Bank of Western Australia Ltd (BankWest). The gifts of moneys in those accounts are not adeemed.
Question B.4.(1)
If the answer to question 1 is (3):
(1) does the word 'investments' pass all the deceased's remaining personal estate?
(presumption against intestacy);
43 In Re Harrison, Turner v Hellard (1885) 30 Ch D 390 (Lord Esher MR):
There is one rule of construction, which to my mind is a golden rule, viz, that when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce - that he did not intend to die intestate (393).
44 Of course a presumption is just that. It does not give a court licence to reword the Will to avoid an intestacy if there is cogent material against the application of the presumption. In this case there is not. The testatrix expressly allocated shares to two of her brothers who would otherwise benefit in intestacy. She did not intend them to take further by application of a partial intestacy.
45 The clear intention of the testatrix was to distribute all her liquid assets at the date of death in the shares she specified. Reading the Will as a complete document and applying a presumption against intestacy, Ms Lindsey's clear intention was to divide the balance of her estate into 36 shares, apart from payment of debts and testamentary expenses and the specific bequests of house and vehicle.
46 She did this with precision, assigning shares to the objects of her bounty. Reading the Will as taking effect immediately prior to death, I am satisfied Ms Lindsey intended to transfer all her liquid assets to the beneficiaries in the shares she specified.
47 The answer to Question B.4.(1) is 'Yes'.
48 The words 'investments' pass all the deceased's remaining personal estate.
Question B.4.(2)
or if not, which of the following assets pass under the word 'investments': [there follows a list which I have not reproduced].
49 It is unnecessary to answer this question. However, if I am wrong in my answer to Question B.4.(1) then enumerated items (a), (e), (v), (w), (qq), (rr), (ss), (tt) and (uu) would not pass under the Will. They cannot fit the definition of 'investments'. They would be distributed as in a partial intestacy.
50 The balance of the assets listed under Question B4.(2) fit the definition of 'investments' and pass under the Will.
Issue C. Beneficiaries
Question C.1.
Is the gift to 'Western Australian Campaign to Save Native Forests, 794 Hay Street, Perth. W.A.' a gift for charitable purposes?
51 The statement of agreed facts under the heading (3) Western Australian Campaign to Save Native Forests (CSNF) is expanded in the affidavit of Shaun William Conlin sworn 13 August 2012:
6. 1) The Public Trustee believes that between 1975 and the 1990's there was an organisation in Western Australia named Campaign to Save Native Forests which was not incorporated and the Public Trustee believes this was the second listed beneficiary. Attached hereto and marked 'SWC11' is a photocopy of a letter dated 16 September 2009 from Dr Beth Schultz to the Public Trustee to that effect and its enclosures.
52 Dr Elizabeth Schultz wrote to the Public Trustee on 16 September 2009:
I was a founding member and early secretary of the CSNF, which was launched in 1975. The organisation was very active in the late 1970s and the 1980s, but ceased to exist in the 1990s. It did not become incorporated. I attach a copy of a newsletter, unfortunately undated, which sets out the aims of the organisation.
I am currently senior vice-president of the Conservation Council of WA (CCWA) and CCWA's representative on the Western Australian Forest Alliance (WAFA). I attach a copy of the objectives of WAFA, which was formed in 1990 and has campaigned actively for the better use and management of WA's native forests, especially old growth forests, through the 1990s and continuing to the present day. Like the CSNF, WAFA is not incorporated.
Given that the objectives of WAFA closely resemble those of the CSNF, WAFA would be an appropriate organisation to receive the bequest, which the late Mrs Lindsey clearly intended should go to an organisation working for the protection of WA's native forests.
If the fact that WAFA is not incorporated precludes it from receiving the bequest, there is an alternative forest conservation organisation that was formed in the same year as the CSNF and has similar objectives, the South-West Forests Defence Foundation Inc. (SFDF). I attach a copy of its constitution and certificate of incorporation. I was a co-convener and founder of the SFDF and am still on its executive committee. The SFDF would be an appropriate recipient of the bequest in question.
53 West Australian Campaign to Save Native Forests (CSNF) was an unincorporated body but its aims in a newsletter are:
The Campaign's aims are to:
• Halt the continual decline in forest area and reverse this pattern through re-afforestation with the original tree types.
• Ensure the preservation and conservation of as many ecologically viable forest types as possible in Western Australia
• Ensure that the usage of the remainder of the forest area maintains the forest's ecological viability and integrity, and is balanced to meet present and future forest requirements.
Accordingly, we seek to end the way in which forests are currently being downgraded and destroyed as a result of overcutting, unrestricted open cut mining and clearfelling.
54 In an affidavit dated 9 August 2013 Dr Schultz deposes that she was a co-founder and appointed the first secretary of CSNF and was an active member attending as many meetings as possible over a 20 year period.
55 She was also a co-founder of South-West Forests Defence Foundation Inc and has been a member since its inception in 1975 holding numerous office bearer positions. She concludes:
7. The specific aim of both CSNF and South-West Forests Defence Foundation Inc was to stop the wood chipping of Western Australia's native forests. Both groups started as a result of the threat posed to the state's native forests by the wood chipping industry and both groups collaborated together working towards the same major objective of stopping that industry in Western Australian native forests.
56 Ms Catherine Taylor swore an affidavit on 24 December 2013 and deposes that she joined the CSNF in the 1970s and was office manager/coordinator for a period of approximately two years from mid 1979. She detailed the activities that she engaged in during that time and the decline in activity level of the CSNF from the mid 1980s.
57 The organisation did not adopt a constitution though a draft constitution was prepared which sets out accurately the aims of the organisation. They are:
2. AIMS
(i) To change the orientation of priorities in indigenous forest management in Western Australia away from exploitation of its resources for private profit towards conservation and the promotion of general community benefits. These include the preservation of wildlife habitats, tourism, recreation, scientific and educational study as well as timber, honey and wildflower production.
(ii) To halt the continual decline in indigenous forest area and reverse the pattern through reaforestation.
(iii) To conserve ecologically viable representative samples of forest associations. This involves the creation of additional National Parks and Reserves which are fully protected by law in perpetuity against exploitation in any form.
(iv) To promote knowledge of the indigenous forests among the community concerning both their values and the dangers with which they are threatened.
Accordingly the CSNF aims to halt the present degradation of the indigenous forests which results from overcutting, open cut mining, clearfelling, replacement with pines or other exotic species or plantations, deleterious placement of public utilities and the unnecessary spread of Phytopthora cinnamomi and other forest diseases.
58 The second defendant, South-West Forests Defence Foundation Inc, had as its objects:
3. OBJECTS:
The objects of the Association shall be as follows:
(a) To promote and advance the conservation and preservation of forest land and forest surrounds including the conservation protection and preservation of flora and fauna within the surrounding forest land wherever found.
(b) To preserve and safeguard Karri forests and other forests wherever found from overclearing, erosion, general ecological and soil damage or destruction.
(c) To foster and promote adequate forest management and care and preservation of Karri and other forest wherever found.
(d) To support and promote the establishment of National Parks in Karri and other forest areas wherever found and in particular the establishment of a National park to encompass the Shannon River drainage basin in the lower south-west of Western Australia.
(e) To promote the conservation and preservation of scenic, beauty, wilderness, park, marine and unique areas of Australia, its islands and territories.
(f) To promote and advertise the aesthetic and other values of and relating to the preservation and conversation of forests and scenic, beauty, wilderness, park, marine and unique areas of Australia, its islands and territories.
(g) To co-operate with, seek co-operation from, support and/or affiliate with any person, association or corporation having as objects conservation and environmental protection with particular reference to Karri and other forest, scenic wilderness, park, marine and unique areas.
(h) To do all such things as are considered necessary and advisable or desirable for the proper carrying out of each and every object therein contained.
60 The third defendant, Campaign for Native Forests (Inc), was not incorporated until 18 December 1998. Its objects:
3. OBJECTS:
The objects of the Association shall be as follows:
(a) To take action to achieve the earliest possible cessation of production forestry in old-growth forests.
(b) To take action to secure genuinely sustainable native forests, wherever found, and to end clearfelling as a forestry practice..
(c) To encourage genuinely sustainable wood production through the establishment of tree crops on previously cleared land.
(d) To promote the establishment of a secure native forest reserve system for the purpose of preserving natural forest values.
(e) To promote the management of native forests on the basis of sound biological information so as to best preserve their natural values. In particular, fire management and measures to control pests, diseases and exotic species should be based on biological imperatives.
(f) To promote extensive biological research of native forests so that management can be modified in accordance with improved understanding of their ecosystems.
(g) To promote recognition in both Australian and overseas communities of the high aesthetic, cultural and nature conservation values of old-growth forests.
(h) To publish or produce written or audio-visual materials as considered necessary to achieve object (g).
(i) To do all such things as are considered necessary, advisable and/or desirable for the proper carrying out of each and every object herein contained.
62 While each might fill that description, in the absence of an affirmative request to act as trustees or take under succession I have considered this point no further.
63 The second-named first and fifth defendant, Conservation Council of WA Inc, had as its objects at the date of Ms Lindsey's death:
2.1 To provide a means whereby those bodies interested in conservation of the natural environment and environmental protection and which subscribe to the Council's objects can have regular and formal communication with one another.
2.2 To consider matters of common interest and to arrive at agreed common policy about conservation of the natural environment and environmental protection, and the administration of the Council.
2.3 To act as spokespersons on matters of agreed policy and to press for adoption of, or action on, agreed policy by the appropriate authorities.
2.4 To sponsor or engage in education and research activities in the field of conservation of the natural environment, environmental protection, and sustainability.
2.5 To provide a clearing house and repository for conservation of the natural environment and environmental information in the State.
2.6 To provide a means of liaison with other bodies dealing with conservation of the natural environment and environmental protection, including national and international bodies.
2.7 To provide assistance to Member Bodies and Corresponding Bodies where possible, provided that such assistance is deemed to further the objects of the Council.
2.8 To engage with the political process through campaigning, lobbying and meeting, including with Ministers, Members of Parliament, advisers and political party representatives and committees, but to retrain a strictly neutral position in regard to party politics.
2.9 To establish and maintain a public fund to be called the Conservation Trust of Western Australia for the specific purpose of supporting the objects of the Council. The Fund is establish to receive gifts of money or property for this purpose and money received because of such gifts may be credited to the Fund's bank account. The Fund must not receive any other money or property into its account and it must comply with subdivision 30-E of the Income Tax Assessment Act 1997.
64 It asserts that the gift should be considered as a gift for charitable purposes that has not lapsed.
Charitable purposes
65 The classic statement on charitable purposes is set out by Lord Macnaghten in Commissioners for Special Purposes of Income Tax v Pemsel (1891) AC 531, 583. There are four classes:
(a) the relief of poverty;
(b) the advancement of education;
(c) the advancement of religion; or
(d) other purposes beneficial to the community not falling within any of the three of the preceding classes.
66 In relation to the fourth category it is necessary to positively establish a public benefit.
67 A charitable purpose as defined in the Charitable Trusts Act 1962 (WA) speaks continuously to the present and picks up the case law as it stands from time to time: Aid/Watch Inc v Commissioner of Taxation of the Commonwealth of Australia [2010] HCA 42; (2010) 241 CLR 539 [23].
68 The first question is whether the disposition is for charitable purposes. A trust may be inferred if the gift is for charitable purposes even though the Campaign for Native Forests was unincorporated.
69 I hold that a gift for the conservation and preservation of native Australian flora and fauna is a gift for a charitable purpose, showing comity to decisions in other States. In State Trustees Ltd v Attorney-General (Vic) [2013] VSC 117; (2013) 301 ALR 798 McMillan J said:
[13] Counsel for STL submitted that the words 'preservation and conservation of native Australian flora and fauna' used by the deceased in his will demonstrated a clear testamentary intention to provide a purpose beneficial to the community and were within the spirit and intendment of the preamble to the Act. In support of the former submission, counsel referred to what Dixon J said of the fourth category in Barby:
'It is no more than a final class into which various objects fall that are not comprised in the first three classes, but are nevertheless charitable. It has been found impossible to give an exhaustive definition of what amounts to a charitable purpose, but the authorities indicate the attributes that are to be looked for. The gift must proceed from altruistic motives or from benevolent or philanthropic motives. It must be directed to purposes that are for the benefit of the community or a considerable section or class of the community. The purposes must tend to the improvement of society from some point of view which may reasonably be adopted by the donor. The manner in which this tendency may be manifested is not defined by any closed category. It is capable of great, if not infinite, variation. It may be by the relief of misfortune; by raising moral standards or outlook; by arousing intellectual or aesthetic interests; by general or special education; by promoting religion; or by aiming at some other betterment of the community. The purposes must be lawful and must be consonant with the received notions of morality and propriety.'
…
[16] The protection or preservation of animals has generally been upheld as a charitable object. A classic statement of the benefit arising from animal protection or preservation is set out in Re Wedgwood, where Swinfen Eady LJ said:
'A gift for the benefit and protection of animals tends to promote and encourage kindness towards them, to discourage cruelty, and to ameliorate the condition of the brute creation, and this to stimulate humane and generous sentiments in man towards the lower animals, and by these means promote feelings of humanity and morality generally, repress brutality, and thus elevate the human race.'
[17] In Re Ingram, Smith J held that the purposes described in cl 6(a) of the will in that case were wholly charitable. Clause 6(a) read:
'For the benefit of the public of Australia to preserve animals (being mammals) and birds indigenous to Australia but particularly to Victoria, and the indigenous flora that provides cover food and general conditions suitable for the life habits and preservation of such animals and birds.'
[18] The leading case on point in modern times is Sawtell. In that case, the deceased left the residue of her estate 'to the preservation of native wild life (both flora and fauna)' and directed her trustees to make donations to organisations concerned with the promotion of the preservation of wild life. Holland J held that the gift had a charitable purpose and was a valid charitable trust in respect of both native flora and fauna. He considered that:
'… the use of the words "preservation" and "native" indicate more than a concern for animal welfare, namely, a concern for the welfare of the community in saving our indigenous wild life from being devoured up by the sometimes thoughtless and often greedy advances of mankind across the land.'
- He also said that the word 'preservation' imported an intention to save native life from destruction or extinction and took notice of the fact that the object of preserving 'native' Australian wild life was a purpose beneficial to the community. Holland J held that the gift came within the spirit and intendment of the preamble: 'The aspects of public benefit … incidental to or as flowing from the preservation of native wild life have characteristics which match in spirit purposes stated in the Preamble'.
71 Ms Lindsey made dispositions to four bodies all of which had a general relationship to the environment. From an examination of their objects I am satisfied that Ms Lindsey's intention was to benefit these bodies in their work and that this purpose was charitable.
72 The answer to Question C.1. is 'yes'.
Question C.2.
If the answer to question 1 is yes, has the gift lapsed?
73 No. A gift for charitable purposes remains even though the body itself has disbanded and has not lapsed.
Question C.3.(i)
If the answer to question 2 is no:
(i) does the Supreme Court retain its cypres jurisdiction to order a scheme to dispose of the property the subject of the gift, or must the property be disposed of by way of a scheme under Part III of the Charitable Trusts Act 1962?
74 All parties agree that the court does not retain cypres jurisdiction. The jurisdiction is now entirely to be found in the Charitable Trusts Act.
75 The answer to Question C.3.(i) is 'no'. The property must be disposed of by way of a scheme under the Charitable Trusts Act, pt 3.
Question C.3.(ii)
(ii) can or should the Supreme Court appoint a trustee in substitution for the Campaign to Save Native Forests?
76 In the absence of a clear successor to the CSNF or Environment Centre there is no obvious trustee.
77 The charitable purpose for the bequests remain but it has become inexpedient and impracticable to carry out that purpose unless a scheme is prepared under the Charitable Trusts Act pt 3.
78 Although there is a trust there is no immediate trustee. A trust however does not fail for want of a trustee. The appropriate way to deal with the disposition is the preparation of a scheme under the Charitable Trusts Act pt 3 s 7.
79 The answer to Question C.3.(ii) is 'The court can but should not do so. The property should be disposed of by way of a scheme'.
Question C.4.
Is the gift to the Western Australian Environment Centre a gift for charitable purposes?
80 The Western Australian Environment Centre was an incorporated association between 12 February 1975 and 9 November 2004. Its correct name was Environment Centre of WA (Inc).
81 Its objects:
2. To promote continuing examination and exposition of the Western Australian, Australian and global environments.
3. To examine any matters affecting the Western Australian, Australian and global environments.
4. To publish any information relevant to the environment.
5. To maintain an office in a central location and provide information and referral services on the environment.
6. To facilitate community participation on environmental issues.
7. The property and income of the association shall be applied solely towards the promotion of the objects and purposes of the association and no part of that property or income may be paid or otherwise distributed, directly or indirectly, to members of the association, except in good faith in the promotion of those objects and purposes.
8. To establish and maintain a public fund to be called the 'Environment Centre of Western Australia Public Fund' for the specific purpose of supporting the environmental objects/purposes of the association. The Fund is established to receive all gifts of money or property for this purpose and any money received because of such gifts must be credited to its bank account. The Fund must not receive any other money or property into its account and it must comply with subdivision 30-E of the Income Tax Assessment Act 1997.
82 The answer to Question C.4. is 'yes' for the reasons expressed in answering Question C.1. The objects of the Environment Centre were for charitable purposes.
Question C.5.
If the answer to question 4 is yes, has the gift lapsed?
83 The answer to Question C.5. is no for the reasons expressed in answering Question C.2.
84 Further, Environment House and the Conservation Council both agree that the bequest to the Environment Centre was a gift for charitable purposes and that it has not lapsed. This is also the position of the Attorney General. Having examined the objects of the Environment Centre I am satisfied that it was Ms Lindsey's intention to make a bequest and that the organisation's purposes were charitable.
85 A gift for charitable purposes can continue even if the specific body does not.
Question C.6.(i)
If the answer to question 5 is no, does:
(i) the gift pass to Environment House Incorporated as the natural successor of the Western Australian Environment Centre?
86 The fourth defendant, Environment House, was incorporated on 11 January 2002.
87 Its objects:
3. OBJECTS/AIMS
The objects/aims for which the Association is established are:
3.1 to promote the protection and restoration of the natural environment of Western Australia and a sustainable way of life.
3.2 to provide a reference point in Perth and particularly the East Metropolitan Region of Perth for various aspects of the environment movement and for groups and individuals in the environment movement.
3.3 to encourage co-operation and co-ordination whenever it is important to the cause of greater environmental awareness.
3.4 to encourage and educate the public on all matters related to greater awareness of the environment.
3.5 to build local community networks which acknowledge the social, cultural and environmental aspects of our community.
3.6 to use public donations to further all these Objectives.
3.7 to develop, publish and distribute such materials and communications as the Association considers conducive to the attainment of its objects.
3.8 to promote improvement in the law as it affects environmental matters.
3.9 to provide and maintain a general meeting place and basic office facilities for those associated with the aims of the Association to who need such facilities.
3.10 to establish working groups on specific issues as the need and interest arises.
3.11 to promote the development of members' skills and knowledge.
3.12 to undertake such other activities as the Association shall deem necessary to achieve its objectives.
3.13 Environment House will establish and maintain a public fund to be called the Environment House Tax Deductible Donations Fund for the specific purpose of supporting the environmental objects/purposes of Environment House.
16. Environment House submits that it is such a successor for these reasons:
a. it is specifically incorporated to take over the role that had once been undertaken by the Environment Centre: Affidavit of Conochie sworn 8 July 2013 [13] - [22], [27] - [29]; Affidavit of Skinner affirmed 8 July 2013 at [11] and [15]; and
b. the work undertaken by Environment House closely mirrors the work previously undertaken by Environment Centre: Affidavit of Conochie [8] - [10], [23] - [24], [28], [33] - [45]; Affidavit of Skinner [4] and Affidavit of Philip Jennings affirmed 31 October 2013 at [3], [9], [16] and [22].
17. A comparison of the objects of each organisation bears this out. The objects of Environment Centre are most relevantly set out in paragraph 8 above and are at SWC 16 Affidavit of Conlin at [56] and the objects of Environment House are at clause 3 of its constitution: SWC 18 Affidavit of Conlin at [66] - [67].
18. A comparison between those objects and the powers of the associations also demonstrates that there is a close affiliation between objects as set out in the following table:
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90 The Attorney General argues that there is insufficient evidence that any entity is the successor of the Western Australian Environment Centre.
91 The Conservation Council agrees with the Attorney General and argues that the Environment Centre's primary objects was to provide information on the environment for the benefit of the community and is a charitable institution run for the advancement of education: Re Compton, Powell v Compton (1945) Ch 123, 127. It argues that Environment House is not the natural successor:
4.25 In respect to the gift to the Environment Centre, it is submitted that Environment House is not the natural successor, its focus and functions being sufficiently different from those of the now non-existent Environment Centre. In support of this submission, the Conservation Council relies on the affidavit of Philip John Jennings affirmed 31 October 2013 (Mr Jennings' affidavit).
4.26 The objects to the former Environment Centre are extracted above in paragraph 4.15 of these submissions. As evidenced from those objects and paragraphs 9 and 21 of Mr Jennings' affidavit, the Environment Centre's focus at the time when it was established in 1975 through to the time when the deceased drafted her will in 1985 and continuing until the late 1990s, was the provision of information, education and training about environmental conservation to a state-wide audience, all offered free of charge. Although located centrally in Perth, the environment Centre's reach up until the late 1990s was state-wide, which meant that its services were accessible to the deceased then residing in the Albany region. In contrast, Environmental House's focus is on sustainable living and its activities are largely concentrated in the Perth metropolitan area as noted by Brenda Marian Conochie in paragraphs 33, 35 - 37 and 40 - 45 of her affidavit sworn 8 July 2013.
4.27 It is also relevant that Environment House is not the only organisation that believes it is entitled to the bequest to the former Environment Centre. The Conservation Council also considers that, whilst not a successor in the sense that it always co-existed with the Environment Centre, there was a close relationship between it and the Environment Centre, and the Conservation Council has continued to provide many of the important state-wide functions previously provided by the Environment Centre.
4.28 It is accordingly submitted that the charitable purpose in the deceased's bequest to the Environment Centre could be fulfilled by disposing of the gift through a scheme benefitting organisations with similar purposes, including the Conservation Council of Western Australia, pursuant to section 7(1) of the Charitable Trusts Act.
The evidence
92 This aspect is not covered in the statement of agreed facts. Relevant parties have filed affidavits.
93 Philip John Jennings is a trustee, patron and past president of the Conservation Council and swore an affidavit on 31 October 2013 where he outlined his involvement with the Conservation Council since 1975 and its relationship with the Environment Centre of WA which was established by the Conservation Council in 1975 to provide a service to the public offering educational resources, a library and training services free of charge to members of conservation organisations. As a secondary function, the Environment Centre sold conservation materials and produce such as honey, jam, souvenirs, handicrafts and books. He details the relationship between the two bodies which from 1975 until 1989 were co-located. When the lease expired the two bodies were obliged to move to new premises. He details the decline of the Environment Centre, its financial crisis until it was effectively inactive in 2000. As part of the windup the Environment Centre donated its library to the Conservation Council in recognition of the Conservation Council's ongoing role in educating and dispensing information to the public:
21. The Conservation Council has continued most of the previous functions of the Environment Centre which are all offered free of charge. These include the provision of information, education, training, networking, conferences, group support and publications about environmental conservation.
22. Most of the regional environment centres, including Environment House, are still operating and carrying on some aspects of the Environment Centre's work within their local communities including the sale of produce. The focus of these centres is typically sustainable living rather than nature conservation and environment protection.
23. The state-wide role which the Environment Centre once had, has passed to the Conservation Council. The Conservation Council provides support and assistance to over 100 affiliated member groups, including many of the regional environment centres. This support includes publicity, training and information.
94 Rowena Helen Skinner swore an affidavit of 8 July 2013. She was the coordinator of the Environment Centre from 1995 until early 2001. She outlines the role of the Environment Centre as one of education and information on environmental issues. Funding guidelines changed and the role diminished. She describes how, in 1999, a group called the Community Anti-Nuclear Network (CANNWA) would store material with the Environment Centre. It was led by Brenda Conochie and Rob Gulley. By the time Ms Skinner left the Environment Centre as its coordinator and it had moved to premises in Victoria Park CANNWA and others had moved to a site in Maylands, a space that provided a shopfront with greater potential for public engagement. They called it Environment House and provided environmental information, petitions and assistance with running community campaigns on key environmental issues.
95 Brenda Marian Conochie swore an affidavit of 8 July 2013. She outlines how she used to use the library at the Environment Centre and collect campaign materials from the Centre for stalls she was involved in.
96 After detailing the demise of the Environment Centre she deposes:
20. I had met and partnered with Rob Gulley in 1999 through mutual involvement in the anti-nuclear movement. Together with other members of our CANNWA (Community Anti-Nuclear Network of WA) group, we set up an upstairs office with basement space for our theatrical props for anti-nuclear demonstrations in the Old Peninsula Community Centre in Maylands. The office was right on Maylands Station and CANNWA used the bank and post office across the road in Eighth Ave.
21. A short while later Rob and I met environmental activist Rachael Roberts (one of the 5 WA base Councillors for the Australian Conservation Foundation (ACF) at the time) who put the idea to us that we should together seek to establish a 'one stop shopfront' for campaign literature and petitions, practical help and carefully selected eco-products to support people to live more eco-sustainably.
22. Rachael's vision fitted well with the idea we had of creating something like Friends of the Earth's premises in Collingwood and which would help to revitalise the community environment centre concept in WA. We felt that having useful products for sale would help unengaged public feel that it was a 'normal' thing to do, to come through our open door and see what we had for sale which would lead them to the wide variety of campaign literature we could provide.
97 She also deposes:
24. … Because ECWA was still a legal entity (until November 2004) we could not call our Centre the 'Environment Centre', so came up with the name Environment House, to indicate that this centre 'housed' environment groups.
98 She deposed that as well as being an informal base for the Australian Conservation Foundation, Environment House also housed the Anti-Nuclear Alliance of Western Australia and CANNWA.
99 She details the Environment House's current activities:
35. Environment House runs weekly 'Sustainable Saturdays' (10am-4pm) where visitors can learn from our native front garden and organic backyard food garden, buy their vegie seeds, eco-friendly cleaning and gardening supplies, sustainable gifts, pick up pamphlets, browse through our library, chat with other visitors, and discuss their energy or water use or get help to start or trouble-shoot composting or wormfarming with energy/water/waste auditor Rob Gulley, who now coordinates Anglicare's Home Energy Saver Scheme but volunteers here in the weekends.
36. Since environment House's move to Bayswater, although we have less passing trade, we have kept up a busy schedule of market stalls and displays at fairs, fetes and festivals across metro Perth. As well as our weekly stall at City Farm markets, EH has provided an average of 40 one-off outreach displays, activities or presentations or group visit events per year. Our stalls at these public events have engaged people of all ages, and offer many 'point of entry' lifestyles that better protect our natural heritage.
37. Environment House also gives presentations on ways to reduce energy and water consumption and ways to turn foodscraps to fertiliser (by composting and wormfarming) to a very wide variety of groups, including seniors, religious congregations, people with intellectual and psychiatric disabilities, and refugees (through support agencies who have hired interpreters for these occasions).
38. Environment House's outreach work has been approximately 80% voluntary, the remainder involving the payment of a fee, mostly by local councils engaging our services, or funded by a Lotterywest grant we had in 2007-8 that covered these activities as well as charging a fee for 200 home advisory visits.
39. This year's running of our centre and our stalls has involved approximately 15 active volunteers now run the centre and our stalls. We have 60 formal members, 900 weekly e-news subscribers our two websites:
online but under reconstruction)
40. Environment House undertook a recent Samphire conservation project on the Maylands foreshore involving work bees with people recruited through e-mailouts.
41. Environment House also coordinates bush weeding at our next door wetland with Chisholm College students, pre-school gardening classes, composting classes, and eco-retail operation enable many community members to be involved in sustainability actions.
42. After 12 years of this kind of community involvement, Environment House has a high recognition factor across Perth as one of the few places to go for in depth information about sustainable living. We are sought out to provide advice free from commercial interest. About 25% of our Bayswater wall space is devoted exclusively to informational materials, and at outreach events the 'education space' is 50-100% of the engagement space.
43. Environment House was heavily involved with the development and delivery of the WA Green Skills Home Sustainability Assessment Course and in 2011-12 employed 14 Sustainability Assessors to advise and install eco-hardware for householders from Albany to Kalgoorlie to Geraldton under a state-funded contract with Synergy, the Hardship Efficiency Program.
44. Although this large contract ended a year ago, we still receive calls from some of those visited, or their friends and relations, hoping for some advice. We refer healthcare cardholders through to the HESS scheme and offer fee-for service visits to others. Often they get a free evening or weekend phone consult with Rob Gulley or another energy auditor/volunteer Alan Benn.
45. Part of our engagement with communities from non-English speaking backgrounds has been to produce little booklets on Saving Water and Power ($WaP) in 7 priority community (refugee) languages: Amharic, Arabic, Burmese, Farsi, French (for some Africans), Kirundi, Swahili. We have also done translations into two further migrant languages, Chinese and Italian. We would love to be in a position to initiate some new environmental projects with refugees, particularly those unable to do paid work yet.
100 The Conservation Council, while submitting it has a claim to be considered as a successor to the Environment Centre, submits that the charitable purpose in Ms Lindsey's bequest should be fulfilled by disposing of the gift through a scheme benefitting organisations with similar purposes including itself.
101 From an examination of the objects of both the Conservation Council and Environment House with those of the Environment Centre (WA), my conclusion is that each share similar objects at least insofar as education is concerned. A mere comparison of objects is insufficient to determine succession. Both organisations conduct activities broadly in keeping with those of the Environment Centre although Environment House has other objectives as well.
102 The Conservation Council argues that Environment House is not the natural successor.
103 In view of the conflict on the affidavit evidence, it is not sufficiently clear that either the Conservation Council or Environment House is the natural successor to the Environment Centre (WA). Unlike the situation in Public Trustee v Cerebral Palsy Association [2004] WASCA 36; (2004) WAR 496 there is no compelling case for a natural successor. The answer to Question C.6(i) is 'no'.
Question C.6.(ii) and (iii)
(ii) does the Supreme Court retain its cypres jurisdiction to order a scheme to dispose of the property the subject of the gift, or must the property be disposed of by way of a scheme under Part III of the Charitable Trusts Act 1962?
(iii) can or should the Supreme Court appoint a trustee in substitution for the West Australian Environment Centre?
104 The Supreme Court does not retain cypres jurisdiction and the property must be disposed of by way of a scheme under the Charitable Trusts Act pt 3.
105 The Supreme Court can but should not appoint a trustee in substitution for the Western Australian Environment Centre.
106 That being so, a scheme should be prepared under the Charitable Trusts Act and laid before the Attorney General.
107 I respectfully suggest that the way forward is for all interested or affected parties to conduct a mediation in a hope to find an acceptable scheme that will advance the charitable purposes intended by Ms Lindsey in respect of the Environment Centre (WA).
Summary of questions and answers
Issue B. Assets
Question B.1.
Is the wording in the will equivalent to:
(1) 'I leave the following of my investments (namely ...)'. (Enumeration of particulars principle).
(2) 'I leave all my investments I own at the date of my will (including ....)';
or
(3) 'I leave all my investments I own at the date of my death (including ...)'
(section 26(a) of the Wills Act 1970.)
- Answer: B.1.(3). 'I leave all my investments I own at the date of my death (including …),
Question B.2.
If the answer to question 1 is (1) or (2), which of the following assets pass under the wording 'moneys in my name with … the Australian Commission & Public Service Credit Society Ltd GPO Box S1315, Perth':
(1) the Bank of Queensland Premier Investment account (no. 4 on the Schedule of Assets and Liabilities)?
(2) the Bank of Queensland Reserve Charges account (no. 5 on the Schedule of Assets and Liabilities)?
(3) the Bank of Queensland shares (no. 10 on the Schedule of Assets and Liabilities)?
(4) the Bank of Queensland dividend to date of death (no. 45 on the Schedule of Assets and Liabilities)?
- Answer: Unnecessary to answer.
Question B.3.
If the answer to question 1 is (1) or (2), does the Bankwest Reward Pension Saver Account 306-001-50-1107-8 pass under the wording 'moneys in my name with … Albany branch of the R & I Bank balances and moneys in my name with the WA Teachers' Credit Society, 148 Adelaide Tee, Perth WA'?
- Answer: Unnecessary to answer.
Question B.4.(1)
If the answer to question 1 is (3):
(1) does the word 'investments' pass all the deceased's remaining personal estate?
(presumption against intestacy);
- Answer: Yes.
Question B.4.(2)
or if not, which of the following assets pass under the word 'investments': [there follows a list which I have not reproduced].
- Answer: Unnecessary to answer.
Issue C. Beneficiaries
Question C.1.
Is the gift to 'Western Australian Campaign to Save Native Forests, 794 Hay Street, Perth. W.A.' a gift for charitable purposes?
- Answer: Yes.
Question C.2.
If the answer to question 1 is yes, has the gift lapsed?
- Answer: No.
Question C.3.(i)
If the answer to question 2 is no:
(i) does the Supreme Court retain its cypres jurisdiction to order a scheme to dispose of the property the subject of the gift, or must the property be disposed of by way of a scheme under Part III of the Charitable Trusts Act 1962?
- Answer: The property must be disposed of by way of a scheme under the Charitable Trusts Act pt 3.
Question C.3.(ii)
(ii) can or should the Supreme Court appoint a trustee in substitution for the Campaign to Save Native Forests?
- Answer: The court can but should not do so. The property should be disposed of by way of a scheme.
Question C.4.
Is the gift to the Western Australian Environment Centre a gift for charitable purposes?
- Answer: Yes.
Question C.5.
If the answer to question 4 is yes, has the gift lapsed?
- Answer: No.
Question C.6.(i) and (ii)
If the answer to question 5 is no, does:
(i) the gift pass to Environment House Incorporated as the natural successor of the Western Australia Environment Centre; or
(ii) does the Supreme Court retain its cypres jurisdiction to order a scheme to dispose of the property the subject of the gift, or must the property be disposed of by way of a scheme under Part III of the Charitable Trusts Act 1962?
- Answer: The property must be disposed of by way of a scheme under the Charitable Trusts Act pt 3.
Question C.6.(iii)
(iii) can or should the Supreme Court appoint a trustee in substitution for the West Australian Environment Centre?
- Answer: The court can but should not do so. The property should be disposed of by way of a scheme.
Costs
108 My tentative view is that the costs of the plaintiff and the Attorney General should be paid from the estate. My tentative view is that the other parties who have taken positions ought to recover their reasonable costs from the estate. If any party has a contrary view I will hear submissions when judgment is delivered.
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