The Public Trustee as Executor of the will of Granville Cecil Venters (Dec) v Attorney General for the State of Western Australia

[2015] WASC 33

THE PUBLIC TRUSTEE as Executor of the will of GRANVILLE CECIL VENTERS (Dec) -v- ATTORNEY GENERAL for the State of Western Australia [2015] WASC 33

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 33
Case No:	CIV:2318/2014	Heard:	ON THE PAPERS
Coram:	McKECHNIE J	Delivered:	2/02/15
No of pages:	5	Judgment Part:	1 of 1
Result:	Scheme approved
Category:	B
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Parties:	THE PUBLIC TRUSTEE as Executor of the will of GRANVILLE CECIL VENTERS (Dec) ATTORNEY GENERAL for the State of Western Australia
Catchwords:	Charitable trusts Application to vary trust Scheme approved by Attorney General No new principles
Legislation:	Charitable Trusts Act 1962 (WA), pt 3
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : THE PUBLIC TRUSTEE as Executor of the will of GRANVILLE CECIL VENTERS (Dec) -v- ATTORNEY GENERAL for the State of Western Australia [2015] WASC 33 CORAM : McKECHNIE J HEARD : ON THE PAPERS DELIVERED : 2 FEBRUARY 2015 FILE NO/S : CIV 2318 of 2014 MATTER : IN THE MATTER of section 10 of the Charitable Trusts Act 1962 (WA)

and

IN THE MATTER of the trusts of the will of GRANVILLE CECIL VENTERS (Dec)

BETWEEN : THE PUBLIC TRUSTEE as Executor of the will of GRANVILLE CECIL VENTERS (Dec)

Plaintiff

AND

ATTORNEY GENERAL for the State of Western Australia
Defendant

Catchwords:

Charitable trusts - Application to vary trust - Scheme approved by Attorney General - No new principles

Legislation:

Charitable Trusts Act 1962 (WA), pt 3

Result:

Scheme approved

Category: B

Representation:

Counsel:

Plaintiff : No appearance
Defendant : No appearance

Solicitors:

Plaintiff : Solicitor for Public Trustee
Defendant : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Nil


1 McKECHNIE J: Granville Cecil Venters, a Master Mariner, who died on 14 October 2013 left the residue of his estate to various charitable institutions in one fifth parts including:

[A]s to the remaining one of those parts to the CANCER COUNCIL WESTERN AUSTRALIA INC (the CANCER COUNCIL) UPON TRUST for the use and benefit of Cottage Hospice Shenton Park.

2 Probate of his will was granted to the Public Trustee who held $111,002.35 as at 10 September 2014, representing one-fifth of the residue of the estate.

3 The charitable purpose cannot be achieved through the Cottage Hospice Shenton Park.

4 The Cancer Council advised the Public Trustee that:

• it formerly operated the Cottage Hospice in Shenton Park;

• the Cottage Hospice provided in-patient palliative care services;

• the Cottage Hospice was no longer operative;

• the Cancer Council Western Australia Inc still operates other palliative care services.

5 The Public Trustee prepared a scheme, approved by the Attorney General on 22 June 2014:

SCHEME FOR VARIATION OF TRUST UNDER THE CHARITABLE TRUSTS ACT 1962 (WA) ('Scheme')

(1) The terms of the charitable trust established by the Will of GRANVILLE CECIL VENTERS dated 21 December 2007 be varied as follows:

(a) by deleting paragraph (e) of clause 4 of the will and by substituting the following paragraph:

'(e) as to the remaining one of those parts to the CANCER COUNCIL WESTERN AUSTRALIA INC for the furtherance of palliative care within Western Australia.'

(2) The Trustee's and the Attorney General's reasonable costs and expenses of an incidental to:

(a) preparing and advertising the Scheme; and

(b) obtaining approval for the Scheme,

be paid out of, and be a charge on, the Trust property.

6 On 13 November 2014, I made orders that:

• the matter be listed for hearing on 2 February 2015 following advertisement of the scheme;

• if no submissions are filed the matter will be determined on the papers.

7 The proposed scheme was advertised by the Public Trustee and appeared in the Government Gazette on 21 November 2014 and the West Australian Newspaper on 21 November 2014.

8 The advertisement noted the date proposed for the hearing of the application was 2 February 2015 at 9.30 am.

9 The advertisement also provided:

Any person desiring to oppose the scheme is required to give written notice of his intention to do so to the Principal Registrar of the Supreme Court, the Public Trustee (quoting EM 214) and the Attorney General not less than 7 clear days before that date.

10 No notice of opposition has been received.

11 The testator's charitable purpose was to fund palliative care services offered by the Cancer Council. Although the specific object of his bequest no longer exists, the charitable purpose remains.

12 The scheme is a proper one that will carry out the desired purpose. It is not contrary to law, public policy or good morals. The requirements of the Charitable Trusts Act 1962 pt 3 have been complied with. The purpose is charitable. The scheme is approved without modification.

Orders

(1) The terms of the charitable trust established by the will of Granville Cecil Venters dated 21 December 2007 be varied as follows:

(a) by deleting paragraph (e) of clause 4 of the will and by substituting the following paragraph:

'(e) as to the remaining one of those parts to the CANCER COUNCIL WESTERN AUSTRALIA INC for the furtherance of palliative care within Western Australia.'
(2) The Trustee's and the Attorney General's reasonable costs and expenses of and incidental to:

(a) preparing and advertising the Scheme; and

(b) obtaining approval for the Scheme,


be paid out of, and be a charge on, the Trust property.

13 I direct the principal registrar to publish notice of approval of the scheme in the Government Gazette as soon as practicable.