MATTER : Will of INEZ IRENE BARBETTI late of Unit 36, 22 Hayes Street, Bunbury, Widow (Dec)

Charitable Trusts Act 1962 (WA)

BETWEEN : GERALD LESLEY HOOD as Executor of the Estate of INEZ IRENE BARBETTI (Dec)

Wills, probate and administration - Construction and effect of testamentary disposition - Principles to determine testator's instructions and intention - Extrinsic evidence admissible to clarify ambiguity - Ambiguity as to identity of charitable body named in the Will - Determination required as to whether proposed beneficiary misdescribed or a non-existent organisation - Whether cy-pres doctrine or provisions of Charitable Trusts Act 1962 (WA) applicable - Gift to body named in the Will held to be valid notwithstanding misdescription

Charitable Trusts Act 1962 (WA), s 4, s 7, s 10, s 15

First Defendant : State Solicitor for the State of Western Australia

Attorney-General (NSW) v Perpetual Trustee Co Ltd & Ors [1940] HCA 12; (1940) 63 CLR 209

Berry v International Committee of the Red Cross & Ors (1986), unreported; SCt of WA; Library No 6530; 24 November 1986

Burns (dec), Re; [1969] WAR 97

Daniels (dec), Re; [1970] VicRp 10; [1970] VR 72

Executor Trustee & Agency Co of South Australia Ltd v Warbey & the Attorney-General (No 2) (1973) 6 SASR 336

Pace (dec), In re; (1985) 38 SASR 336

Raven, In re; Spencer v National Association for the Prevention of Consumption & Tuberculosis [1915] 1 Ch 673

The Royal North Shore Hospital of Sydney v Attorney-General (NSW) & Ors [1938] HCA 39; (1938) 60 CLR 396

British Home and Hospital for Incurables v Royal Hospital for Incurables (1904) 90 LT 601

Commissioners for Special Purposes of Income Tax v Pemsel [1891] UKHL 1; [1891] AC 531

Davies v Perpetual Trustee Co (Ltd) [1959] AC 439

Davis, In re; Hannen v Hillyer [1902] 1 Ch 876

Gibson v Coleman (1868) 18 LT 236

Good's Will Trusts, Re; Oliver v Batten [1950] 2 All ER 653

Loscombe v Wintringham [1850] EngR 887; (1850) 13 Beav 87

Lycett, Re; (1897) 13 TLR 373

Penny v Cancer & Pathological Research Institute of Western Australia (1994) 13 WAR 314

Perpetual Trustees Tasmania Ltd v Her Majesty's Attorney-General for the State of Tasmania [2002] TASSC 16

Pettit, Re; [1987] NZHC 110; [1988] 2 NZLR 513

Public Trustee v Attorney-General of New South Wales [2005] NSWSC 1267

Public Trustee v Cerebral Palsy Association of Western Australia Ltd [2004] WASC 36; (2004) 28 WAR 496

Songest, Re; Mayger v Forces Help Society [1956] 1 WLR 897

1 HASLUCK J: The plaintiff, Gerald Lesley Hood, is the executor and trustee of the estate of Inez Irene Barbetti who died on 29 October 2002 ("the deceased"). The plaintiff's appointment was effected by a grant of probate made on 27 December 2002. He has applied to the Supreme Court for a determination as to whether a gift purportedly made by the Will of the deceased to "The Leukaemia Research and Support Fund Western Australian Division" fails, and for relief in the alternative in the event of it being held that the gift does fail.

2 The various parties with an interest in the matter have been given notice of the proceedings. The second defendant is a necessary party having regard to provisions of the Charitable Trusts Act 1962 (WA).

3 The plaintiff's application is supported by the affidavit of the plaintiff sworn 21 September 2005 and the affidavits of the plaintiff's solicitor, Merle Ruth Bloch, sworn 22 February and 13 July 2006. I have before me also an affidavit filed on behalf of the second defendant, being the affidavit of Peta Renae Fillery sworn 5 July 2006.

4 It appears from the deceased's death certificate that she was born at Bunbury in the State of Western Australia. I understand that she married Arthur Sydney Percival Frewin on 21 February 1942. Her first husband died on 9 June 1977. Some years later she married Charlie Barbetti on 31 July 1982. The latter died on 5 February 1993. Thus, the deceased was a widow at the date of her death on 29 October 2002. She had no children.

5 The deceased's parents both predeceased her. Her father died on 17 January 1960 and her mother died on 27 April 1965. She had eight siblings, all of whom predeceased her. It appears from a family tree exhibited to the plaintiff's affidavit that a number of her eight siblings had children and many of these received specific legacies under the deceased's Will.

6 It is apparent from the death certificate that the deceased died of chronic lymphatic leukaemia. The affidavit evidence establishes that about 3 months prior to her death the deceased instructed a firm of solicitors in Bunbury, Edwin Abdo & Associates, to prepare a Will. I understand that the deceased was then residing in Bunbury and certainly her usual address as at the date of her death on 29 October 2002 is given as 36/22 Hayes Street, Bunbury. I note in passing that both her marriages took place in Bunbury and it is clear from the evidence that she was a long-standing resident of Bunbury and her family connections were in that area.

7 I will return to the nature of the instructions given by the deceased to her solicitors at a later stage. For the time being, it is sufficient to note that on 12 August 2002 the deceased executed a Will prepared by the solicitors in response to her instructions. It is that Will which is the subject of the grant of probate mentioned earlier.

8 By her Will the deceased required her executor to convert her real and personal property into money and to stand possessed of the same upon trust to give a number of specific legacies to members of her family and friends ranging from $75,000 at the upper end of the scale through to amounts of $20,000. She bequeathed certain of her household chattels and effects to one of her nieces and her chattels and effects situated at Riverview, Clifton Road, Waterloo to "The Salvation Army (Western Australia) Property Trust". By cl 2.19 of her Will the deceased dealt with the residue of her estate as follows:

"2.19 The residue of my estate to the ROYAL FLYING DOCTOR SERVICE OF AUSTRALIA (WESTERN AUSTRALIAN SECTION), THE NATIONAL HEART FOUNDATION OF AUSTRALIA WESTERN AUSTRALIA DIVISION, THE CANCER FOUNDATION OF WA, THE MULTIPLE SCLEROSIS SOCIETY (WA DIVISION), THE LEUKAEMIA RESEARCH AND SUPPORT FUND WESTERN AUSTRALIAN DIVISION as tenants in common in equal shares."

9 The deceased's estate has now been distributed save for the one-fifth share of residue held on account of the gift to "The Leukaemia Research and Support Fund Western Australian Division". The amount held on account of that gift is approximately $200,000.

10 During the course of the administration of the estate it became apparent that there was no entity in existence called "The Leukaemia Research and Support Fund Western Australian Division". From enquiries made on his behalf, the plaintiff ascertained that the following entities are currently in existence and were in existence when the Will was made, namely, The Leukaemia Research and Support Fund ("the Fund") and The Leukaemia Foundation of WA Inc ("the Foundation") and The Children's Leukaemia and Cancer Research Foundation Inc ("the Children's Foundation").

11 The Fund is an unincorporated association and supports the work of the Children's Hospital at Westmead in Sydney, New South Wales. The Fund has informed the plaintiff that it has no West Australian Division, that it had no relationship with the deceased, and that the Fund does not claim to be the beneficiary under the Will and does not seek to be joined in the proceedings.

12 The Foundation does claim to be entitled under the Will and for that reason has been joined as the second defendant to these proceedings. The objects of the Foundation include the provision of a support service for patients, family, carers and friends affected by leukaemia and the carrying out of research into leukaemia and other blood related diseases. The stance of the Foundation is that the deceased intended funds from her estate to come to the Foundation in recognition of the support that the Foundation had provided to another of the beneficiaries mentioned in the Will, namely, Cheryl Bird, who is a niece of the deceased. I will say more about this aspect of the matter later.

13 The Children's Foundation funds research into childhood cancers, being the only one of its kind in Western Australia. It has expressed an interest in the outcome of the proceedings but has not been joined as a party. An extract from the Constitution of the Children's Foundation was exhibited to the plaintiff's affidavit.

14 The plaintiff said in his affidavit that he has made enquiries of the deceased's friends and others of the deceased's family, but has been unable to elicit an understanding of what charitable purposes were of paramount importance to the deceased. He said that the deceased was a very private person who did not discuss her illness or the terms of the charitable bequests pursuant to her Will with friends or family members.

15 It is said further by the plaintiff that the deceased regretted not having children of her own and for this reason, he believes that the deceased could have wanted to make provision for research into childhood leukaemia. He says also for the reason that the deceased herself suffered from lymphatic leukaemia, the deceased could have wanted to support research into adult leukaemia.

16 The plaintiff went on to say in his affidavit that all beneficiaries named in cl 2.19 in the Will are Western Australian charities or Western Australian divisions of national charities. For this reason, he believes that the deceased may have wanted her gifts pursuant to cl 2.19 to be of benefit to the Western Australian community.

17 The plaintiff said that a scheme prepared by his solicitor on his behalf proposed that the gift be divided equally between the Foundation and the Children's Foundation and this was referred to the first defendant (The Attorney-General for Western Australia) in accordance with the provisions of the Charitable Trusts Act. The first defendant declined to consider and approve the scheme until there was a determination as to whether the gift in cl 2.19 of the Will fails, or is upheld.

18 I pause here to note that in a later affidavit, being the affidavit of the plaintiff's solicitor, Merle Ruth Bloch, sworn 13 July 2006, it is said that as at 30 June 2006 the funds held by the plaintiff pending the resolution of the matter were $213,496.34. The scheme prepared by the plaintiff under the Charitable Trusts Act was approved by the Attorney-General on 7 July 2006 being a scheme in these terms:

"In lieu of the gift made to The Leukaemia Research & Support Fund Western Australian Division by clause 2.19 of the will of Inez Irene Barbetti dated 12 August 2002, Gerald Leslie Hood as Executor and Trustee of the estate of Inez Irene Barbetti distribute the gift equally between Leukaemia Foundation of WA Incorporated and Children's Leukaemia & Cancer Research Foundation Inc."

19 The plaintiff's affidavit establishes to my satisfaction that in addition to the Foundation, the Children's Foundation and all other eligible charitable bodies, the persons potentially affected by the plaintiff's application are the deceased's beneficiaries on intestacy. If the Court holds that the gift in cl 2.19 fails and that no scheme can be approved under the Charitable Trusts Act, beneficiaries on intestacy will share in the gift.

20 It is apparent from the affidavit of the plaintiff's solicitor sworn 22 February 2006 that notice of the proceedings in an appropriate form was given to those entitled upon an intestacy but no steps have been taken by any of those entitled to be joined as parties or to be heard in respect of the matter. I must proceed on the assumption that they are content to abide the outcome of the Court's ruling.

21 The orders and declarations sought by the plaintiff as executor of the Will are expressed in the following terms:

"1. A declaration as to whether the gift to THE LEUKAEMIA RESEARCH AND SUPPORT FUND WESTERN AUSTRALIA DIVISION provided for in Clause 2.19 of the Will of the Deceased dated 12th August 2002 fails.

2. If the gift does not fail, directions for the distribution of the gift.

3. If the gift fails, a declaration that by Clause 2.19 of the Will the Deceased evinced a general charitable intent.

4. That pursuant to the Charitable Trusts Act 1962 the Scheme of Distribution as provided for in Annexure A to this Summons or such other scheme of distribution as the Court may determine, be approved.

5. Alternatively, a declaration that by Clause 2.19 of the Will the Deceased did not evince a general charitable intent and the portion of residue disposed of by Clause 2.19 passes on intestacy.

6. The Plaintiff's costs be taxed and paid from the portion of the estate held on account of the gift forming the subject of the application."

22 It will now be useful to look at the legal principles bearing upon an application of this kind and the orders sought.

23 It emerges from earlier discussion that by cl 2.19 of her Will the deceased bequeathed the residue of her estate to five named Western Australian charities. Four of those charities are properly identified. However, there is no charity in existence equating to the fifth part of the gift which was made to "The Leukaemia Research and Support Fund Western Australian Division". I have indicated, and so find, that the Leukaemia Research and Support Fund is an unincorporated association that supports the work of the Children's Hospital at Westmead in Sydney, New South Wales. In Western Australia, there are two organisations of relevance being The Leukaemia Foundation of WA Inc and The Children's Leukaemia and Cancer Research Foundation.

24 It follows from this and from the terms of the originating summons that I must determine whether the recipient of the gift in question is misdescribed or whether the bequest was made to a non-existent organisation. In other words, unless it is established to the satisfaction of the Court that one of the existing and potentially entitled organisations was the intended beneficiary of the gift, the gift will fail. In that event, the Court must proceed to the further questions raised by the originating summons as to how the property in question is to be dealt with.

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] VicRp 10; [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.

28 It is apparent from the decided cases that if the 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: Pace (dec), In re; (1985) 38 SASR 336 at 339. See also Raven, In re; Spencer v National Association for the Prevention of Consumption & Tuberculosis [1915] 1 Ch 673 in which it was held that extrinsic evidence can only be admitted where there is a description applying indifferently to more than one person or society.

29 If the organisation named in the subject Will is not merely misdescribed but non-existent, the Court must consider whether a general charitable intent may be inferred from the Will. If no general charitable intent can be inferred, the bequest fails and is dealt with as part of the residue of the estate.

30 In determining whether a wider charitable intention is the substantial purpose of the bequest, the Court is guided by the Will, the conclusion being a matter of construction. The terms of the document, together with any extrinsic circumstances admissible in aid of construction, form the materials for ascertaining whether the specific directions in the Will were animated by a wider charitable purpose which amounts to the true or substantial object: Attorney-General (NSW) v Perpetual Trustee Co Ltd & Ors [1940] HCA 12; (1940) 63 CLR 209 per Dixon and Everett JJ at 227.

31 A gift that displays a charitable purpose will not fail if it can be established that the gift can be construed as having a general charitable intention: Executor Trustee & Agency Co of South Australia Ltd v Warbey & the Attorney-General (No 2) (1973) 6 SASR 336 at 341. If a general charitable intention can be established then, in the case of a charitable trust, the property is able to be applied cy-pres: The Royal North Shore Hospital of Sydney v Attorney-General (NSW) & Ors [1938] HCA 39; (1938) 60 CLR 396, or pursuant to a scheme pursuant to the Charitable Trusts Act.

32 Where a gift, and in particular a residuary gift, is made by a testator to a non-existent body, but from the description of the body set out by the testator in his Will, it may be assumed that the testator intended it to be a body carrying on a charitable activity, then a court would lean in favour of finding a general charitable intention from the slightest indication in the Will to save the gift from lapse: Daniels (supra) at 76.

33 Section 7 of the Charitable Trusts Act provides that where any property is held upon trust, or is to be applied, for any charitable purpose, and it is impossible, impracticable or inexpedient to carry out that purpose then (whether or not there is any general charitable intention) the property and income shall be disposed of for some other charitable purpose in accordance with a scheme approved under Pt III of the Act. By s 4 of the Act a charitable purpose means any purpose that in accordance with the law of Western Australia is charitable.

34 By s 10 of the Act any scheme prepared under Pt III shall be submitted to the Attorney-General for approval. By s 15 the Supreme Court has jurisdiction to hear and determine all matters relating to the scheme.

35 I pause to note in passing that in the present case where there is a direct bequest to a charitable organisation which does not involve a trust, the property is able to be applied pursuant to a scheme under the Charitable Trusts Act. It is upon this basis that a scheme has been prepared and approved by the Attorney-General which will allow for the residuary gift in question to be distributed equally between the Foundation and the Children's Foundation. However, the approval and implementation of the proposed scheme depends essentially upon a determination being made by the Court as to whether the gift in question fails.

36 In Berry v International Committee of the Red Cross & Ors (1986), unreported; SCt of WA; Library No 6530; 24 November 1986 the deceased bequeathed the residue of his substantial estate to "World Branch of Red Cross International". There was no incorporated body which precisely corresponded with the name of the residuary beneficiary but there were two bodies which might, with some propriety, have made a claim to the gift. There was an organisation known as International Red Cross which operated worldwide through two constituent bodies being the International Committee of the Red Cross and the League of Red Cross Societies. Accordingly, on the issuing of the originating summons these potential claimants were joined as the first and second defendants respectively. A further question seen as liable to arise was whether, in the event that the gift of the residue failed the testator died intestate in respect of the property comprised in the gift or whether a general charitable intention should be inferred and the gift saved under the cy-pres doctrine.

37 As to the initial question, Smith J observed that while there was no incorporated body which corresponded with the organisation named in the Will the extrinsic evidence disclosed that the description in the Will most closely corresponded to the name by which the two defendants are known collectively, namely, the International Red Cross. There was no relevant extrinsic evidence to connect the testator with either defendant and it was not possible to determine on such evidence with sufficient certainty which of the defendants the testator meant to benefit. His Honour then went on to approve orders allowing for the residue to be divided equally between the International Committee of the Red Cross and the League of Red Cross Societies.

38 Let me now return to the circumstances of the present case.

39 It emerges from my earlier findings that as at the date when the Will was executed and the deceased's date of death there was no organisation or entity fitting the description of the subject gift exactly. There was the Fund and two organisations of particular relevance being the Foundation and the Children's Foundation. The decided cases establish that in circumstances where there is a degree of ambiguity concerning the intention of the testatrix and a description in the Will arguably applicable to more than one institution, extrinsic evidence will be admissible to resolve the latent ambiguity and to determine which institution the testatrix had in mind. Accordingly, I consider that in the circumstances of the present case I am entitled to receive and to have regard to extrinsic evidence bearing upon the intention of the deceased.

40 I noted in earlier discussion that the deceased died of leukaemia and that the objects of both the Foundation and the Children's Foundation included provision for research concerning leukaemia.

41 The Fund acknowledged that it had no relationship with the deceased. Moreover, the use of the words in the Will "Western Australia" appear to exclude the Fund, for the evidence establishes that it is based in New South Wales and has no branch in this State.

42 It appears from a letter dated 30 June 2005 exhibited to the plaintiff's affidavit that the Children's Foundation was unable to confirm or deny whether the deceased had ever supported the Children's Foundation. The reason for this was that the data base on which the organisation stored donations was very basic. On the other hand, the Foundation was able to rely upon evidence suggesting that it did have a prior relationship with the deceased. In a letter from the Foundation to the plaintiff's solicitor dated 8 July 2005 it was said that one of the beneficiaries named in the Will, Ms Cheryl Bird, and her partner Mr Trevor Bird, were provided with free accommodation, transportation and support services by the Leukaemia Foundation from 9 May 1998 until the death of Trevor Bird due to leukaemia on 29 June 1999. As the wife and carer of Trevor Bird, Ms Bird was provided with all the support that is available to family members of haematological patients referred to the Leukaemia Foundation. Trevor Bird was receiving treatment at Royal Perth Hospital.

43 This summary was supported by various contemporary records. It was said further that due to a computer malfunction in 2000, the Foundation's data base and all electronically recorded interactions that may have existed between the deceased and/or Ms Bird and the Foundation have been lost. This would include records of donations.

44 This brings me to the affidavit of Peta Renae Fillery which was filed and served on behalf of the Foundation as second defendant. Ms Fillery deposed to the fact that she is General Manager of the Foundation which has been operating under its present name since 1995. Reference is made to the fact that pursuant to cl 2.6 of the Will the deceased bequeathed to Cheryl Bird of 16 Gasney Ridge, Clarkson in the State of Western Australia a sum of $50,000. It is said further that the deceased provided support to Cheryl Bird and her late husband, Trevor Bird, who died of leukaemia on 29 June 1999.

45 The Fillery affidavit goes on to say that when it was necessary that Trevor Bird undergo treatment at the Bone Marrow Transplant Unit at Royal Perth Hospital, Dr Andrew McQuillan, the Haematology Registrar at Royal Perth Hospital, by letter dated 26 May 1999, wrote to the Foundation and requested assistance for Cheryl Bird during Trevor Bird's treatment in Perth. The Foundation subsequently granted the request and provided free accommodation, transport and support services to Cheryl and Trevor Bird until Trevor Bird's death.

46 It is said that there is no other organisation with similar functions and objects to the Foundation and which claims to have had any connection with the deceased. Having regard to these facts and matters, Ms Fillery holds the belief that it was the Foundation that the deceased meant to benefit.

47 It is against this background that I must return to the circumstances leading to the preparation and execution of the subject Will by the deceased. It appears from a letter dated 6 August 2003 written by Edwin Abdo & Associates exhibited to the plaintiff's affidavit that the deceased consulted the law firm in question in July 2002 with a request that a Will be prepared. She provided her lawyers with a list of the names of legatees and beneficiaries including reference to "Leukaemia Society Research".

48 I note in passing that the deceased's handwritten list refers in general terms to some of the organisations that were benefited eventually but without linking them specifically to Western Australia. The fact that the deceased apparently approved the link to Western Australia by executing a Will containing a designation of that kind in due course suggests that each of the charitable organisations in question, including an organisation involved in leukaemia research was in fact intended to be an entity linked to Western Australia.

49 The Abdo letter goes on to say that an initial draft was prepared and sent to the deceased on 22 July 2002. In the covering letter the law firm indicated that it required further instructions with respect to the full address of the executor and also the addresses of the legatees. It was said further that the law firm had a charities book which listed all major charities within Australia. The author of the letter could not find a foundation termed the Kidney Foundation being one of the entities mentioned on the deceased's list. For that reason, it seems, that the subject clause in the draft concluded by referring to "the Leukaemia Research and Support Fund Western Australian Division and the Kidney Foundation ??? as tenants in common in equal shares".

50 I pause again to say that, in my view, it is significant that the link to Western Australia in respect of the proposed Leukaemia Research entity was presented to the deceased in this draft and apparently approved by her. However, in the end, it seems that the reference to the Kidney Foundation was removed from the final version of the Will.

51 The Abdo letter dated 6 August 2003 goes on to say that Mr Edwin Abdo was hospitalised on 29 July 2002. On 31 July 2002 the deceased called at the law firm's offices and discussed the matter with a member of staff. She was not prepared to wait until Mr Abdo was able to see her. A memorandum prepared by the staff member dated 31 July 2002 recorded that a list of the addresses of the various beneficiaries was provided by the deceased. She advised that she had decided to leave the Kidney Foundation out of her Will. She was told that the law firm would send a further draft of her Will to make sure that it was in accordance with her wishes.

52 A further draft was sent to the deceased from which it appears that the earlier reference to the Kidney Foundation had been removed. It was at that stage that the Salvation Army (Western Australia) Property Trust was named as a beneficiary in respect of the deceased's household chattels and effects. The clause which was destined to become 2.19 in the Will executed by the deceased was now in its final form and referred simply to "the Leukaemia Research and Support Fund Western Australian Division". Arrangements were then made for the Will to be executed, as it was, on 12 August 2002.

53 In a letter dated 25 February 2005 Mr Abdo said (after the deceased's death) that in preparing the first draft of the Will he referred to certain pages of the Charities Book 2001 which included reference to the "Leukaemia Research and Support Fund". He could not find any reference to "Leukaemia Society Research".

54 Mr Abdo said further that when the Will was sent to the deceased on 22 July 2002 he had expected to be able to discuss matters with the deceased for the purpose of finalising the document but was not afforded an opportunity to do so. Put shortly, he confirmed that the reference in the first draft to "the Leukaemia Research and Support Fund Western Australian Division" found its way into that draft because he could not find any reference to "Leukaemia Society Research" in the book he consulted when the first draft was prepared.

55 To my mind, this chain of evidence suggests that the deceased did not intend to benefit a body in New South Wales known as the Leukaemia Research and Support Fund but, rather, was minded to benefit a local body which in her mind was a society involved in leukaemia research.

56 In arriving at that step in the reasoning process I give weight to her use of the word "Society" which strongly suggests that she had in mind to benefit an existing body and not simply to set aside funds for the benefit of leukaemia research in general terms. As it happened, owing to the unfortunate circumstances described by Mr Abdo, an additional element of ambiguity was added to the form in which her intention was expressed when use was made of a charities book. However, in circumstances in which I am entitled to have regard to extrinsic evidence in order to construe the words used in the Will, I consider that I am entitled to treat the words "Leukaemia Society Research" as the starting point in the process of reasoning. I am entitled to take account also of surrounding circumstances including that the connections of the deceased were to Bunbury in the State of Western Australia and that she was prepared to approve the link to Western Australia in respect of all the charitable organisations that she eventually sought to benefit. In addition, I give weight to the evidence before me which establishes that the deceased herself died of leukaemia and that a member of her family circle, Cheryl Bird, who was also a beneficiary named in the Will, was a person who had received benefits from an organisation involved in leukaemia services and research.

57 It follows from earlier discussion that I am of the view that the deceased intended to benefit an existing society which was involved in leukaemia research, being a society or organisation carrying on its work in the State of Western Australia. There were (and are) two associations in existence which were arguably of that description. The nature of the list prepared by the deceased and submitted to her solicitor clearly indicates that the proposed object of her bounty was not simply a figment of her imagination, but a tangible body, not unlike the other beneficiaries named in cl 2.19 such as the Royal Flying Doctor Service and National Heart Foundation.

58 The intended beneficiary was arguably one of two organisations or societies based in Western Australia. Accordingly, I must give consideration to the question of whether this is a case in which the intended beneficiary was misdescribed. It emerges from my review of the decided cases that where there are two entities arguably the subject of the intended gift, it is permissible to have regard to extrinsic evidence with a view to ascertaining whether one of the two bodies was the intended recipient.

59 To my mind, it is significant that no mention is made by the deceased in her initial list, or in the Will she ultimately executed, of a children's society or any similar description that might be taken as an indication that she was minded to assist research directed to the way in which children were affected by leukaemia. A qualification of that kind could have been easily added to the words she used to express her intention, but there is nothing in the words "Leukaemia Society Research" to suggest that the Children's Foundation or some similar body was intended to be the recipient of the gift.

60 There is evidence before me that a member of the deceased's family circle, namely, Ms Cheryl Bird, had received support from an existing society which was involved in the provision of services and research in regard to the treatment of leukaemia.

61 When these various facts and matters are considered in conjunction I am of the view that this is a case of misdescription, and that the deceased intended to benefit the Foundation. In other words, the extrinsic evidence, viewed in context, is sufficient to clarify the ambiguity in the Will as to the body the deceased intended to benefit, and is sufficient to establish that, properly construed, cl 2.19 of the Will has the effect of vesting a one-fifth share in the residue of the estate in the second defendant as a tenant in common with the other beneficiaries named in that clause.

62 It follows from my conclusion that the gift does not fail and directions must be made providing for the benefit of the gift to be vested in the second defendant. It therefore becomes unnecessary for me to deal with the other issues and forms of relief addressed by the originating summons.

63 I will hear from counsel for the parties as to the exact form of orders and directions to be made and as to whether, as proposed in par 6 of the originating summons, the plaintiff's costs are to be taxed and paid from the portion of the estate held on account of the gift forming the subject of the application.