Kostka v The Ukrainian Council of brand new South Wales Incorporated 2013 NSWSC 222 (Supreme Court of the latest Southern Wales, Young AJ, 26 March 2013)
This case concerned construction associated with the might of Taras Bodlak (the deceased), whom passed away on 2 January 2010, aged 95. The deceased left nine gift ideas in the 1996 will, the following:
- Australian Shevchenko Trust, Ukrainian Studies Foundation in Australia Limited in Lidcombe NSW: 10%.
- Ukrainian Youth Association of Australia Ltd in Lidcombe NSW: 10%.
- Ukrainian Class in Lidcombe NSW: 10%.
- Ukrainian Ballet-Dancing Groups, School of Music and Arts in Lidcombe NSW: 10%.
- Ukrainian Political Prisoners in Ukraine: 5%.
- Ukrainian War Invalids in Ukraine: 5%.
- Ukrainian Ladies Association in Lidcombe: 5%.
- Renovation of Ukrainian Hall in Lidcombe NSW: 5%.
- Ukrainian Catholic Church in Canberra: 5 per cent.
Problems arose aided by the interpretation of those gift ideas. Moreover, there clearly was no setting up of any trusts within the might, or any specification of purposes, but rather outright presents to organizations, including some which were unincorporated.
Their Honour said that the basics had been well-established (at 3):
- Will there be any one human body which precisely fits the description within the might? If therefore, that body provides and no further enquiry is made.
- If you don’t, the court can get proof of surrounding circumstances not direct declarations of intention to discover who had been meant.
- Then the court can look not only at surrounding circumstances but also direct declarations of intention if there are two or more bodies which exactly answer the description.
In this instance, there have been no systems or organisations which exactly matched gift suggestions 3 to 8 in the list into the will. This required a solution that is cy-pres. Which means in instances where a testator discloses a broad intent that is charitable maybe perhaps not a particular intention to profit the known as organization), however the description regarding the beneficiaries is not clear, the court can authorise a circulation amongst bodies whose names are near to the description employed by the testator in their will, provided the Attorney-General (inside the part as protector of charities) consents. The events have been to mediation as well as the Attorney-General had consented into the mediated plans made.
From the dilemma of basic charitable intent, their Honour stated that (at 16–17):
The scheme with this will shows an intention to profit a number of teams with Ukrainian or church connections you might say in a way that there was clear advantage towards the Ukrainian community. Although Lidcombe is specified, it’s not unusual for sets of individuals arriving at Australia from European countries or Asia to cluster together in specific localities, whoever impact however spreads through the State of this country. I hence usually do not see this guide being a barrier up to a choosing that the presents may benefit the city generally. It really is quite clear that most counsel and solicitors consider that, aided by the exception that is possible of present in paragraph 7 towards the Ukrainian ladies Association in Lidcombe and that respecting the hallway in paragraph 8, all of the gift ideas in 1 to 9 are charitable as that term is grasped in Australian legislation. I really do not require to worry that a few of the systems or all of the bodies look like unincorporated associations since the evidence that was handled within the mediation shows that either you can find corporations or trustees or any other reasoned explanations why there isn’t any issue into the association that is unincorporated designated.
Consequently, there was clearly a broad charitable i loved this intent shown in the will. The cy-pres recipients of this charitable presents at 3 to 6 regarding the list that is deceased’s been decided at mediation, and had been incorporated into their Honour’s purchases.
But had been the gift suggestions to your women’s relationship and also the Ukrainian hallway charitable? For the to begin these feasible gift suggestions, there have been two contenders: Ukrainian Women’s Association, Lidcombe branch and Ukrainian Women’s Association in Australia, State Executive of NSW. Their Honour considered the four classic purposes that are charitable enunciated in Pemsel’s situation. Did the present end up in one of these brilliant? Truly the only one that is possible the fourth mind of charity, ‘other purposes useful to the community’.
An organisation this is certainly solely for social or leisure purposes may not be charitable, however as their Honour noted ‘the trend of authority is apparently going in direction of upholding such gift ideas where there are a few extra features’. The Ukrainian Women’s Association in Australia, Lidcombe branch had objects which His Honour felt had ‘a charitable flavour’ (at 26) in this case. The Lidcombe branch produced series that is large of to Ukrainian based figures in Australia and offshore including donations into the Ukrainian School at Lidcombe to help needy kiddies in Sokal Ukraine, to deliver clothes towards the bad of Ukraine, also to contribute to the veterans of this Ukrainian Partisan Army staying in the Ukraine that do perhaps maybe not be given a veteran’s pension and therefore are in bad circumstances. The branch additionally endeavoured to give help for elderly past users.
Their Honour reviewed the case that is relevant, of which there clearly was small, and the ones that there have been contained ‘very few good analogies’ (at 34). These instances included Victorian Women Lawyers Association Inc v Federal Commissioner of Taxation 2008 FCA 983. If that’s the case, the court held that the purposes of this organization must be examined holistically, when you look at the light associated with organisation’s development and history. In this respect, His Honour said (at 30):
It can appear to me that in the ambit of what exactly is being considered in forming that list would add a small grouping of females fulfilling with the typical purpose of marketing Ukrainian tradition and trying to look after persons of Ukrainian beginning in needy circumstances.
He determined that (at 44–45):
It should be recognized there is no choice when you look at the common legislation globe which goes quite so far as the things I need to determine when you look at the present instance. Further, we noted a decade ago in Radmanovich v Nedeljovic that this looked like a gap that is unwholesome charity legislation. It appears for me now, nevertheless, that that space is slowly being paid down. I now think about, into the light of this product We have evaluated, that in twenty-first century New Southern Wales a trust in preference of a team of ladies of a specific ethnicity, who seek significantly more than simple entertainment and social sex, but additionally to help folks of the exact same cultural team and spread that culture to advance the community purposes of a team of Australians of a specific cultural beginning, is really a charitable present.
The present ended up being split similarly involving the two contending recipients.
Regarding the present to renovate the hallway, the hallway ended up being effortlessly recognizable, but there clearly was no charitable function connected to the present. The data revealed that the hallway ended up being principally utilized being a location for Ukrainian social tasks and for tasks related to the regional Ukrainian Catholic college. The Attorney-General presented that the present ended up being an objective gift and that because of the proof showing this type of close experience of other charitable tasks, specially utilizing the college, the present arrived to the course of gift suggestions when it comes to upkeep of college structures that are frequently charitable. Their Honour consented.
Implications with this situation
This situation had been a typical example of just exactly exactly how to not make a might. The deceased never ever hitched and had no kids. The will was divided in to 100 components, of which 65 had been designated for charity. Nevertheless, the dead failed to determine the charitable recipients properly (except 1, 2 and 9), and every needed to be determined cy-pres by mediation, or by the results of this instance (where two presents were doubtful as for their nature that is charitable). Furthermore, there had been a grouped household supply application which triggered 10 components being granted to a household supply receiver. Expenses implications had been apparent, and the costs issue to his Honour dealt by the end of the instance. Expenses associated with the plaintiff (the executor) as well as the Attorney-General were granted from the property. Charges for the charities had been deducted from their circulation.