KAREN MAREE GADSBY as Executor of the Estate of JAMES THOMAS TURNBULL -v- CANCER COUNCIL WESTERN AUSTRALIA (INC) [2025] WASC 165 (8 April 2025)

(a) Cancer Council Western Australia (Inc) instead of the Children's Cancer Council of Western Australia;

(b) Perth Children's Hospital Foundation Limited, instead of Perth Children's Hospital; and

(c) Dogs Refuge Home WA Inc, instead of Shenton Park Dogs Home.

1. Orders are also sought to enable distribution to the named individuals in their correct names.
2. For the reasons which follow, the application should be granted.

1. The plaintiff relies upon the affidavits of Karen Maree Gadsby sworn 4 June 2024 and 20 December 2024. The facts deposed to are uncontroversial.

1. The executor, Karen Maree Gadsby (Ms Gadsby), is the daughter of Mr Turnbull's former wife.
2. Ms Gadsby has not received any indication that any person proposes to commence or has commenced any proceedings under the Family Provision Act 1972 (WA), and the time in which a person would ordinarily be required to commence such a proceeding has expired.
3. The estate is of moderate value.
4. The relevant clauses of the Will are as follows:

My Executor shall hold the whole of my real and personal estate upon trust either to retain or to sell it and to apply the same as follows:

(a) To pay all just debts, funeral and testamentary or executorship expenses arising on my death.

(b) To provide $20,000 for the care of Jessie (my dog).

To divide the remainder of the estate as follows:

(c) 20% of my estate equally between THE CHILDRENS CANCER COUNCIL of WESTERN AUSTRALIA and the PERTH CHILDREN'S HOSPITAL.

(d) The remaining 80% of my estate is to be divided equally between the following.

(1) Roberta Kaye GADSBY

(2) Karen Maree GADSBY

(3) Narelle Jane GADSBY

(4) Lauren Maree GADSBY

(5) SHENTON PARK DOG'S REFUGE HOME.

Should any of the above Gadsby women pre-decease me their entitlement shall be added to the amount received by the SHENTON PARK DOG'S REFUGE HOME.

1. There are no known charities bearing the names:

(a) 'The Childrens Cancer Council of Western Australia';

(b) 'Perth Children's Hospital'; or

(c) 'Shenton Park Dog's Refuge Home'.

1. Further, Roberta Gadsby's middle name is 'Kay' not 'Kaye', and Narelle Gadsby's middle name is 'Jayne', not 'Jane'.
2. The deceased is believed to have made three prior wills, copies of which have all been produced. The originals of those prior wills have not been located. Those wills are dated 22 April 2000 (2000 Will), 23 March 2005 (2005 Will), and 26 May 2021 (2021 Will) (together, the prior Wills).

1. By the 2000 Will, the deceased appointed Roberta Kay Gadsby as executor and sole beneficiary, with a gift over to Karen Maree Oxnam (now Gadsby) and Narelle Jayne Gadsby.

1. By the 2005 Will, which was prepared by lawyers, the deceased divided his estate equally between 'The Cancer Council Western Australia Inc' and 'The Princess Margaret Hospital for Children Foundation Inc'.

1. By the 2021 Will, which does not appear to have been drafted by lawyers, the deceased left 20% of his estate to be divided equally between 'The Children's Cancer Council of Western Australia' and the 'Perth Children's Hospital'.

1. Mr Turnbull told Ms Gadsby at some point that he was appointing her to be his sole executor, but otherwise did not discuss any of the contents of the Will with her, and she only became aware of the contents of the Will, and the prior Wills, after Mr Turnbull's death. Ms Gadsby never discussed with Mr Turnbull the charities named in the Will and she is not aware of her mother having discussed them with Mr Turnbull.
2. In her affidavits, Ms Gadsby has deposed as to the searches made for the charities named in the Will, and the other inquiries made in attempts to ascertain the proper identities of the charities referred to in the Will, including:

(a) asking the witnesses to the Will and one of the witnesses to the 2021 Will, whether they or anyone in their practice had any recollection or file notes or other documents which may assist in the interpretation of the Will;

(b) making inquiries to ascertain the location of any archived files relating to the drafting and execution of the 2005 Will;

(c) conducting searches of the Australia Business Register, the Australian Securities and Investment Commission (ASIC) database and other databases for current and former names similar to The Children's Cancer Council of Western Australia, and other cancer charities with charitable aims relating to children;

(d) conducting a search of the ASIC database and other databases for Perth Children's Hospital, and conducting searches for related entities including Child and Adolescent Health Service and Perth Children's Hospital Foundation Limited;

(e) corresponding with the State Solicitor's Office which acts for the Child and Adolescent Health Service in relation to the matter; and

(f) conducting searches of the Australian Business Register and the ASIC database for Shenton Park Dog's Refuge Home or similarly named charities

1. Mr Turnbull was found to have been a donor to the Cancer Council Western Australia (Inc) (or its former iterations) between 2011 and 2020.
2. Notice of the application was given to:

(a) Cancer Council Western Australia (Inc);

(b) Children's Leukaemia and Cancer Research Foundation Inc;

(c) Children's Cancer Foundation;

(d) Child and Adolescent Health Service;

(e) Perth Children's Hospital Foundation;

(f) Dogs Refuge Home WA Inc; and

(g) the survivors and executors of the estates of the individuals named in the Will;

1. The correspondence annexed to Ms Gadsby's affidavits satisfies me that none of the entities who were given notice of the application wish to be heard in relation to it. I am further satisfied that there are no other potentially interested parties who should be notified and given an opportunity to be heard in relation to the application.

1. The application is made pursuant to O 58 r 2 and r 10 of the Rules of the Supreme Court 1971 (WA). The statutory power to make a declaration such as that sought is also conferred by s 45 of the Administration Act 1903 (WA), s 92 of the Trustees Act 1962 (WA) and s 16(1)(d)(i) of the Supreme Court Act 1935 (WA).
2. In William Frederick Eccles as Executor of the Will of Cecelia Lee Che Veal (Deceased) v The Salvation Army,[1] EM Heenan J summarised the general principles as follows:

The accepted approach to construction is set out by Vickery J in Thomson v Thomson [2008] VSC 375 where his Honour said:

No rule of construction is better settled than that the intention of the testatrix, as expressed in the will, shall prevail. The intention of the maker of the will has been referred to as the 'pole star' in a construction of wills. Thus where the intent of the testator or testatrix is obvious it should be carried out if possible.[2]

Problems of ambiguity or inconsistency in wills often arise in home made wills such as this, but there is clear judicial guidance to the approach which should be taken in any such situation. In Perpetual Trustee Co Ltd v Wright (1987) 9 NSWLR 18, 33 Bryson J cited with approval a passage from the judgment of Powell J in Coorey v Coorey (Unreported, NSWSC, 22 February 1986) that:

It seems to me that one's task is, first, if it be possible, to ascertain what was the basic scheme which the deceased had conceived for dealing with his estate and then, so to construe the will as, if it be possible, to give effect to the scheme so revealed.

In the later case of Hatzantonis v Lawrence; Cox v Lawrence [2003] NSWSC 914 [10] Bryson J cited the following position from the advice of the Judicial Committee in Towns v Wentworth [1858] EngR 371; (1858) 11 Moo PCC 526, 542 ‑ 583; [1858] EngR 371; 14 ER 794, 800:

The rules of construction ... do not seem open to any doubt.

In order to determine the meaning of a will, the court must read the language of the testator in the sense in which it appears he himself attached to the expressions which he has used ...

When the main purpose and intention of the testator are ascertained to the satisfaction of the court, if particular expressions are found in the will which are inconsistent with such intention, though not sufficient to control it, or which indicate an intention which the law will not permit to take effect, such expressions must be discarded or modified; and, on the other hand, if the Will shows that the testator must necessarily have intended an interest to be given which there are no words in the will expressly to devise, the court is to supply the defect by implication, and thus to mould the language of the testator, so as to carry into effect, as far as possible, the intention which it is of opinion that the testator has on the whole will sufficiently declared.

This was expressly adopted and applied by Dixon J in Brennan v Permanent Trustee Co of NSW Ltd [1945] HCA 17; (1945) 73 CLR 404 ‑ see also Faithfull v Pine [2012] WASC 75 and Re Taylor; Taylor v Tweedie [1923] 1 Ch 99, 105 to the effect that the words of a testator who has made his or her own Will may be considered 'less strictly than in the case where the will is drawn by a skilled professional'.[3]

1. The general rule is that a testator's intentions are to be determined from the terms of the will itself. However, evidence, including evidence of the testator's intention, is admissible to the extent that the language used in the Will is ambiguous on the face of the Will or ambiguous in the light of the surrounding circumstances: s 28A(1) of the Wills Act 1970 (WA).

1. In the present case, from the evidence, it is apparent that Mr Turnbull had a specific dispositive intention in mind, both at the time he made the Will and at the time of his death. I am satisfied that the matter can be resolved using established principles of construction, and no issue of the Charitable Trusts Act 1962 (WA) arises in this case.
2. Having regard to the similarity of the name used by Mr Turnbull in the Will, and the extrinsic evidence, in particular the prior Wills, and the previous charitable history of Mr Turnbull, I am satisfied that, at the time of his death, Mr Turnbull's intention was that a portion of his estate, as outlined in the Will, was to be distributed to the Cancer Council Western Australia (Inc).
3. Mr Turnbull had regularly donated to that charity, between 2011 and 2020. The Cancer Council Western Australia Inc. changed its name to Cancer Council Western Australia (Inc) in 2009. Further, Mr Turnbull had previously left a portion of his estate to the Cancer Council Western Australia (Inc) in the 2005 Will. It is telling that that is the only one of the prior Wills prepared by lawyers.
4. While Cancer Council Western Australia (Inc) does not have as its sole charitable purpose the benefit of children, children are beneficiaries of its charitable operations.
5. I am also satisfied that Mr Turnbull's intention was that a portion of his estate was to be distributed to the Perth Children's Hospital Foundation Limited. While both the Perth Children's Hospital Foundation Limited and the Child and Adolescent Health Service (CAHS) have power to accept gifts and bequests, Mr Turnbull had, in the 2005 Will, named Princess Margaret Hospital for Children Foundation Inc as a beneficiary. The former name of the Perth Children's Hospital Foundation Limited is Princess Margaret Hospital for Children Foundation Limited. While not identical to the entity named in the 2005 Will, the names are sufficiently similar to point strongly towards Mr Turnbull's intention in this regard.
6. Likewise in the 2021 Will, Mr Turnbull named Perth Children's Hospital as a beneficiary.
7. In relation to the purported bequest to the 'Shenton Park Dog's Refuge Home', I am satisfied that the entity to which Mr Turnbull intended to leave a portion of his estate is the Shenton Park Dogs' Home, operated by Dogs' Refuge Home (WA). That entity operates in Shenton Park. Its activities are summarised as operating a shelter in Shenton Park, and are described as 'we rescue and care for lost and abandoned dogs and seek new homes for them'. There is no other known entity of a similar name or purpose in Shenton Park.
8. Finally, I am satisfied that Mr Turnbull intended shares in his estate go to Roberta Kay Gadsby and Narelle Jayne Gadsby, as those names are properly spelt, regardless of the spelling of their middle names in the Will. Roberta Kay Gadsby was Mr Turnbull's former de facto wife at the time of his death. Narelle Jayne Gadsby is Roberta Gadsby's daughter, and Mr Turnbull's stepdaughter. Narelle Gadsby's middle name was correctly spelt in the 2000 Will. There is no suggestion that there are any other people with similar names who might have been the intended beneficiaries of the Will.
9. Accordingly, I will make the following orders:

1. The Will of James Thomas Turnbull be construed so that the reference to:

(a) 'The Children's Cancer Council of Western Australia' be read as 'Cancer Council Western Australia (Inc), ABN 15 190 821 561';
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> (b) 'Perth Children's Hospital' be read as 'Perth Childrens Hospital Foundation Limited, ABN 18 604 862 071';
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> (c) 'Shenton Park Dog's Refuge Home' be read as 'Dogs' Refuge Home WA Inc, ABN 38 564 984 197';
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> (d) 'Roberta Kaye Gadsby' be read as 'Roberta Kay Gadsby'; and
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> (e) 'Narelle Jane Gadsby' be read as 'Narelle Jayne Gadsby'.

1. The Plaintiff's costs of this application be paid from the estate of James Thomas Turnbull on an indemnity basis.
2. A certified copy of the order, once extracted, should be filed in the Probate Registry, and I direct that the Registrar cause such certified order to be annexed to the court copy of the grant of probate. The executor should bring in the existing sealed copy of the grant of probate for certification in the same manner.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] William Frederick Eccles as Executor of the Will of Cecelia Lee Che Veal (Deceased) v The Salvation Army [2013] WASC 142.

[2] Thomson v Thomson [2008] VSC 375 [11].

[3] William Frederick Eccles as Executor of the Will of Cecelia Lee Che Veal (Deceased) v The Salvation Army [2013] WASC 142 [17] ‑ [20].