Attorney General (NSW) v Perpetual Trustee Co Ltd

The Summons for Judicial Advice

1. The summons for judicial advice dated 20 September 2021 seeks the following relief: "1. An order giving the Court's opinion, advice and direction pursuant to section 63 of the Trustee Act 1925 (NSW) or the Court's inherent jurisdiction, on the questions set out in the Statement of Facts dated 20 September 2021 filed in these proceedings. 2. In the alternative, an order pursuant to section 63 of the Trustee Act 1925 (NSW), or the Court's inherent jurisdiction, that in the circumstances set out in the Statement of Facts dated 20 September 2021 and filed in these proceedings, Robert Neal Tuck executor and trustee, as trustee of the will of the deceased Wilfred Richard Tuck, would be justified in distributing, pursuant to Clause 1.6 of the Will of the deceased, a gift to: 1. Children's Cancer Institute Australia ACN 072 279 559 (Clause 1.6.1). 2. National Heart Foundation of Australia (N.S.W Division) ACN 000 253 289 (Clause 1.6.2). 3. Vision Australia Limited ACN 108 391 831 (Clause 1.6.3). 4. Macular Disease Foundation Australia ACN 096 255 177 (Clause 1.6.4). 5. Macular Disease Foundation Australia ACN 096 255 177 (Clause 1.6.5). 6. The Royal Society for the Prevention of Cruelty to Animals, New South Wales ACN 000 001 641 (Clause 1.6.6). 7. Guide Dogs NSW/ACT ACN 000 399 744 (Clause 1.6.7). 8. Camp Quality Limited ACN 052 097 720 (Clause 1.6.8). 9. Starlight Children's Foundation Australia ACN 003 627 183 (Clause 1.6.9). 10. Assistance Dogs Australia Limited ACN 074 746 160 (Clause 1.6.10). 11. Sydney Children's Hospital Foundation ABN 72 003 073 185 (Clause 1.6.11). 3. If the answer to question 2, or in any part, is no, do the gifts by the testator to: 1. Children's Cancer Institute Australia (Clause 1.6.1) 2. Heart Foundation (National Heart Foundation of Australia) (Clause 1.6.2) 3. Royal Blind Society (Clause 1.6.3) 4. Macular Degeneration Foundation (Clause 1.6.4) 5. Macular Degeneration Society (Clause 1.6.5) 6. RSPCA (Clause 1.6.6) 7. Guide Dogs (Clause 1.6.7) 8. Camp Quality (Clause 1.6.8) 9. Starlight Foundation (Clause 1.6.9) 10. Assistance Dogs Australia (Clause 1.6.10) 11. Westmead Children's Hospital (Clause 1.6.11) show a general charitable intention?"
2. The Summons also seeks an order that the costs of the application be paid out of the assets of the trust created under the will.
3. The issue in this case is one of construction of the will. These are therefore not Charitable Trust proceedings under the Charitable Trusts Act 1993, for which notice to the Attorney General would be required.

The Issues

1. As can be seen from clause 1.6, the will does not identify the charities listed with precision. For example, it does not refer to their Australian Company Number (ACN) or their addresses, leaving a degree of uncertainty about some of them. But this has only led to a need for judicial advice in respect of three of the named charities.
2. The Statement of Facts indicates that although their description is not very precise, most of the charities described in clause 1.6 can be clearly identified. These are: the Children's Cancer Institute of Australia (clause 1.6.1); the Heart Foundation, the National Heart Foundation of Australia (clause 1.6.2); The Royal Blind Society (clause 1.6.3); the RSPCA (clause 1.6.6); Guide Dogs (clause 1.6.7); Camp Quality (clause 1.6.8); and the Starlight Foundation (clause 1.6.9); and Assistance Dogs Australia (clause 1.6.10).
3. For each of the above charities, the statement of facts and evidence shows that the same underlying charitable undertaking has existed from the time of the making of the will until now. These charities have mostly operated under the same ACN or Australian Business Number (ABN). In the case for example, of the Royal Blind Society, a statutory reconstruction has taken place and its operations have been renamed as "Vision Australia". But in all these cases, the Court is satisfied that the charity referred to in the will can readily be identified as a presently operating charity which should receive the gift.
4. The question for judicial advice here is whether, in respect of the charities described in clauses 1.6.4 and 1.6.5 and 1.6.11, there is adequate identification of the institutions to which a charitable gift is intended.

Applicable Legal Principles

1. The applicable legal principles may be shortly stated. Where a bequest has been made to a specific charitable institution, the first step is to identify the institution. Hasluck J explained this in Hood as Executor of the Estate of Inez Irene Barbetti (Dec) v The Attorney General for Western Australia & Anor [2006] WASC 157 at [25] - [27]: "[25] It appears from Picarda: The Law and Practice Relating to Charities (2nd ed) at 228 that where a legacy has been bequeathed to a specific charitable institution the first step is to identify the institution. It is usually only where an estate has named or described incompletely the institution intended to benefit that a point of construction may arise for the Court. A trivial error in the description of a charitable legatee does not matter, provided the intention of the testator is clear. Where there is an ambiguity but the testator has described the institution which he intends to benefit as being in a particular locality, the legacy will, prima facie, go to an institution situated in the locality named, even though the name used is more like that of an institution in another locality. If a description in the Will applies equally to more than one institution, extrinsic evidence is admissible to resolve the latent ambiguity and to determine which institution the testator had in mind. Proof that the testator was interested in or had subscribed to a particular charity is also receivable. [26] The learned author says also that there are inevitably cases where it is quite impossible to determine which of several charities the testator had in mind. In such cases the Court, by cy-pres application, divides the fund between the claimants in equal shares or otherwise. I note in passing that the cy-pres approach is supplemented by the provisions of the Charitable Trusts Act. [27] The decided cases establish that the prime duty of the Court is to construe the Will to determine, if it can, what was the testator's intention in making his disposition of the residue and to carry out his wishes so expressed: Daniels (dec), Re; [1970] VR 72 at 76. Construction of the terms of the Will alone may not be sufficient to determine the intended recipient of a bequest. When the beneficiary is inaccurately or ambiguously described in a Will, extrinsic evidence is admissible to clarify the testator's intention: Burns (dec), Re; [1969] WAR 97 at 100."
2. In the Estate of Dulcie Edna Rand (dec'd) [2009] NSWSC 48, Harrison J stated the law related to the use of extrinsic evidence in the construction of a will and in relation to whether or not a charitable institution will be regarded as ceasing to exist, as follows: "[35] Extrinsic evidence is admissible in the construction of a will, and is admissible for the purposes of identifying persons and things to which a testator intended to refer: Re Tyrie, deceased (No 1) [1972] VR 168 at 186; Gerhady v South Australian Auxilliary to the British & Foreign Bible Society Inc (No 3) (1986) 44 SASR 195 at 204-206. Where an institution and its address are named in a will, the address may be considered as being only for the identification of the institution and as having no other significance: Re Flynn, deceased [1975] VR 633 at 638-639. … [38] The fact that the name and address of an institution have changed does not mean that it ceases to exist: Flynn (above) at 636-639. Where for all practical purposes the activity and operations of an institution have been continued without change notwithstanding that the institution may even have been dissolved and succeeded by another, the institution will be regarded as not having ceased to exist: Public Trustee v Cerebral Palsy Assn of Western Australia Ltd [2004] WASC 36 ; (2004) 28 WAR 496 at [5]-[21], [40]; Cram Foundation v Corbett-Jones [2006] NSWSC 495 at [27]; Australian Executor Trustees Ltd v Ceduna District Health Services Inc [2006] SASC 286 at [18]-[19]."

General Charitable Intention

1. If after the application of these principles the charity named in a will has ceased to exist the gift will fail unless the gift demonstrates a general charitable intention: Young Croft Smith, On Equity, Law Book Co 2009 [6.490] and Attorney General (NSW) v Perpetual Trustee Co Ltd (1940) 63 CLR 209 at 225 per Dixon and Evatt JJ. Had the gifts failed in this case the Court would infer a general charitable intention on several grounds.
2. First, the Charitable Trusts Act 1993, s 10(2) directs the Court that "a general charitable intention is to be presumed unless there is evidence to the contrary in the instrument establishing the charitable trust". Here there is ample evidence, of a general charitable intention within the deceased's will and nothing appears to the contrary to displace this statutory presumption.
3. Second, clause 1.6 identifies a range of charitable institutions and does not mix any of those charities with any non-charitable institutions or purposes. This structure shows an intent only to benefit charity.
4. Third, clause 1.6 of the will lists charities representing themes in the deceased's life. These themes, closely connected as they are with the testator, are a basis to infer a general charitable intention. The key theme of clause 1.6 is the giving of direct assistance of persons with impaired vision and the assistance of facilities to aid such persons in their lives. The naming of the Royal Blind Society, the Macular Degeneration Foundation and the Macular Degeneration Society are obvious indications of that theme. But a theme of giving wider support to persons with impaired vision also comes through the collection of named charities. The naming of Guide Dogs, Assistance Dogs Australia, and the RSPCA all evidence this theme. The list of charities clearly has a relationship with the deceased's own life experience. This also probably explains the bequest to the Heart Foundation.
5. Another charitable theme is that of assistance to children: the Westmead Children's Hospital, the Starlight Foundation and the Children's Cancer Institute of Australia. The testator did not have children of his own and appeared to be interested in the welfare of children more widely. The testator's logical organisation of charities in themes related to his life grounds the inference of a general charitable intention because of the close attention given to selecting the themes and the list of charities to fulfil those themes.
6. But for the reasons which follow, this is not a case where any of the gifts of residue may otherwise fail and require application of the principles of a general charitable intention to sustain gifts to charity. As will be seen, the gifts in question are otherwise valid.

Clauses 1.6.4, 1.6.5 and 1.6.11 of the Will

1. Clauses 1.6.4 and 1.6.5 of the will present the main issue for advice. Clause 1.6.4 presents a lesser issue.
2. The bequests in clause 1.6.4, to the "Macular Degeneration Foundation" and in clause 1.6.5 to the "Macular Degeneration Society" appear to be similar. The evidence shows that in ordinary language used by the community the term "macular degeneration" has been displaced over time by the term "macular disease". This to some extent explains the somewhat confusing terminology that is employed concerning charities supporting people with macular medical issues and the terminology reflected in the will.
3. Both the 2005 and 2011 wills refer to the "Macular Degeneration Foundation". A search of ASIC corporate records shows that a listed charity called the "Macular Degeneration Foundation", has existed since 2005 and is owned by the "Macular Disease Foundation of Australia". Both entities have the same ACN. They both have their registered offices at the same street address in Kent Street, Sydney although registered in different suites at that street address.
4. According to the website of the Macular Disease Foundation Australia, it was established under the name of the "Macular Degeneration Foundation", but it is now called the "Macular Disease Foundation Australia", and is a registered charity, reporting in that name.
5. Enquiries of an officer of the Macular Disease Foundation Australia indicate that the Macular Degeneration Foundation had its name changed to Macular Disease Foundation Australia. That charity is more fully described in the 2005 will with its address. And but for the change of suite, its street address is the same at the time of the 2011 will. The reference to the Macular Disease Foundation in both wills, an entity that used the same ACN at the time of both wills and still does, indicates that the deceased's intention was at least to benefit the Macular Disease Foundation Australia.
6. A slightly more controversial problem arises with the reference to the "Macular Degeneration Society" in clause 1.6.5. This entity does not appear in the 2005 will. The statement of facts, which records detailed enquiries about the subject, records that a "Macular Degeneration Society" does not exist under that name. The plaintiff submits it is perhaps not clear what the testator intended with a gift under this name in clause 1.6.5.
7. The plaintiff suggests in evidence and submissions that the testator was a member of what is described as a local informal group of vision impaired persons named "Gymea Vision Impaired" which he attended for about 12 years before his death. The statement of facts discusses the possibility that the testator may have intended to benefit this group, which provided some vision impairment support to him and other members.
8. In my view for several reasons the indications are against the testator referring to Gymea Vision Impaired in clause 1.6.5. Instead the indications favour his referring to Macular Disease Foundation Australia in clause 1.6.5.
9. First, the Gymea Vision Impaired group appears clearly to be known by that name, "Gymea Vision Impaired". This is not a difficult name to record and remember. The deceased, as a regular member of that group, would have been very familiar with the name, and perhaps even more familiar with it than he would have been with an institutional charity. Yet he did not use that name, or anything close to it in clause 1.6.5.
10. There is no indication also in the will that the intent behind clause 1.6.5 was to benefit a local charity in his own district such as Gymea. Sometimes, location specific markers can be very helpful in identifying a charity. But there is no connection here in the gift description with Gymea, and no reference to "Vision Impaired" or a group of people meeting under such a name.
11. Second, Gymea Vision Impaired appears, on the limited information available, not to have been constructed specifically to aid persons with macular degeneration. But, as its name indicates, it was set up to assist persons who were vision impaired for different reasons. In those circumstances, given that clause 1.6.5 has the word "macular" within it, it is unlikely that the testator was referring to Gymea Vision Impaired, which did not have a macular specialty.
12. It is more likely that the testator was referring in clause 1.6.5 to an organisation with which he was familiar, and which was related to macular degeneration. The testator included a reference to vision or macular degeneration twice in the will and that was the precise condition from which he suffered. In the testator's hierarchy of charitable intent it is to be expected that treating the very macular disease from which he suffered would be the one that he would most wish to favour.
13. In my view, the structure of the Macular Degeneration Foundation, becoming owned by the Macular Disease Foundation Australia provides an important clue to the construction of the clause 1.6.5 gift. Both names, the "Macular Degeneration Foundation", and the "Macular Disease Foundation" were in current use in circles in which the deceased would have mixed. The use of the two names was apt to give the passing impression that they were two separate charitable entities. Attempting to ensure there was a gift to both in order to give proper testamentary priority to macular disorders in the deceased's hierarchy of charitable intentions is quite understandable.
14. It is probable that the testator's reference to the "Macular Degeneration Society" was an attempt by the testator to reference the business name of "the Macular Degeneration Foundation", with the testator making a simple a mistake by substituting the word "Society" for "Foundation" in the last word of the name..
15. It is probable that the testator wanted to ensure that priority was given in his charitable intentions to the alleviation of suffering from macular disorders, through institutions committed to that end. He may well not have been aware the "Macular Degeneration Foundation" was owned by the Macular Disease Foundation Australia. But it can readily be inferred that his intent was to benefit the charity behind the name, "Macular Generation Foundation". Allowing for his error in the last word, on the true construction of his will he intended to give two portions of residue to this single charity.
16. For these reasons, both clause 1.6.5 and 1.6.4 refer to the listed charity, the Macular Disease Foundation Australia with ACN 096 255 177 and are valid charitable gifts of residue.
17. That leaves the issue of clause 1.6.11, relating to the Westmead Children's Hospital. Sydney has two major children's hospitals, one at the Prince of Wales Hospital at Randwick and the other at Westmead. They are conducted by the Sydney Children's Hospitals Network ("the Network"). The research in the statement of facts shows that there is a registered organisation named "The Children's Hospital Westmead", the government corporate entity that operates what is known as "The Children's Hospital at Westmead". After the passing of the Charities Act 2013 (Cth) charitable fundraising for the Network was reallocated to a Foundation supporting both hospitals. This is a registered charity called "The Children's Hospital Foundation Limited", ACN 003 073 185. There is also a registered charity named the "Westmead Hospital Foundation", but this does not appear to be connected to the Children's Hospital at Westmead.
18. The website for The Children's Hospital at Westmead and the plaintiff's inquiries indicate that in leaving a gift in a will to The Children's Hospital at Westmead it is suggested that the following words should be used in a will: "I give to the Sydney Children's Hospital Foundation, ACN 003 073 185, being for the Children's Hospital at Westmead". Because the Sydney Children's Hospital Foundation is a composite foundation covering both hospitals, it is possible for a testator to direct the funds given to this foundation to be allocated between one of the two hospitals and necessary if that is what is intended.
19. It is clear from the form of clause 1.6.11 that the deceased wished to benefit the charity funding the Westmead Children's Hospital, not the Randwick Prince of Wales Children's Hospital. In an environment where there are several hospitals and foundations with similar names, some slight misdescription is understandable. Upon the proper construction of clause 1.6.11, the testator's intent was to benefit the Sydney Children's Hospital Foundation, with the funds given being directed to the Westmead Children's Hospital. The recipient of the gift intended by the words used by the testator can therefore be accurately identified as "the Sydney Children's Hospital Foundation being for the Children's Hospital at Westmead".

Conclusion and Orders

1. Accordingly, the Court makes the following orders and directions: 1. In the circumstances set out in the Statement of Facts dated 20 September 2021 and filed in these proceedings on 21 September 2021, Robert Neal Tuck executor and trustee, as trustee of the will of the deceased Wilfred Richard Tuck, would be justified in distributing, pursuant to Clause 1.6 of the Will of the deceased, a gift to: 1. Children's Cancer Institute Australia ACN 072 279 559. (Clause 1.6.1) 2. National Heart Foundation of Australia (N.S.W Division) ACN 000 253 289. (Clause 1.6.2) 3. Vision Australia Limited ACN 108 391 831. (Clause 1.6.3) 4. Macular Disease Foundation Australia ACN 096 255 177. (Clause 1.6.4) 5. Macular Disease Foundation Australia ACN 096 255 177 (Clause 1.6.5) 6. The Royal Society for the Prevention of Cruelty to Animals, New South Wales' ACN 000 001 641. (Clause 1.6.6) 7. Guide Dogs NSW/ACT ACN 000 399 744. (Clause 1.6.7) 8. Camp Quality Limited ACN 052 097 720. (Clause 1.6.8) 9. Starlight Children's Foundation Australia ACN 003 627 183. (Clause 1.6.9) 10. Assistance Dogs Australia Limited ACN 074 746 160. (Clause 1.6.10) 11. Sydney Children's Hospital Foundation being for the Children's Hospital at Westmead ABN 72 003 073 185. (Clause 1.6.11) 1. Order that the costs of the Plaintiff in these proceedings be paid from the estate on the indemnity basis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2022