Kostka v The Ukrainian Council of the latest Southern Wales Incorporated 2013 NSWSC 222 (Supreme Court of the latest Southern Wales, Young AJ, 26 March 2013)
This instance concerned construction regarding the will of Taras Bodlak (the dead), 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 prisoners that are political 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 percent.
Difficulties arose because of the interpretation among these gift suggestions. Furthermore, 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 stated that the basics had been well-established (at 3):
- Will there be any one human body which precisely fits the description into the will? If therefore, that human human body provides and no further enquiry is made.
- If you don’t, the court can get proof of surrounding circumstances yet not direct declarations of intention to discover who had been intended.
- If there are two main or maybe more systems which exactly answer the description, then a court can look not merely at surrounding circumstances but additionally direct declarations of intention.
In this full situation, there have been no systems or organisations which exactly matched presents 3 to 8 regarding the list within the might. This needed a cy-pres solution. Which means that in instances where a testator discloses a broad charitable intent ( perhaps maybe not a particular intention to profit the known as organization), however the description associated with beneficiaries is uncertain, the court can authorise a circulation amongst bodies whose names are near to the description utilized by the testator in their will, provided the Attorney-General (in their role as protector of charities) consents. The parties have been to mediation as well as the Attorney-General had consented towards the mediated arrangements made.
In the dilemma of basic charitable intent, their Honour stated that (at 16–17):
The scheme for this will shows an intention to profit a number of groups with Ukrainian or church connections you might say in a way that there clearly was clear benefit towards the community that is ukrainian. Although Lidcombe is specified, it is really not unusual for categories of individuals arriving at Australia from European countries or Asia to cluster together in specific localities, whoever impact however spreads through the State for the Nation. We hence don’t see this guide as being a barrier up to a discovering that the presents may generally benefit the community. It really is quite clear that most counsel and lawyers consider that, with all the feasible exclusion of this present in paragraph 7 towards the Ukrainian ladies Association in Lidcombe and therefore respecting the hallway in paragraph 8, all of the gift ideas in 1 to 9 are charitable as that term is recognized in Australian legislation. I actually do not want to worry that a number of the systems or the majority of the bodies be seemingly unincorporated associations due to the fact proof that has been managed within the mediation shows that either you will find corporations or trustees or other reasoned explanations why there is absolutely no issue when you look at the association that is unincorporated designated.
Consequently, there was clearly a general charitable intent shown in the might. The cy-pres recipients for the charitable gift ideas at 3 to 6 of this list that is deceased’s been determined at mediation, and had been incorporated into their Honour’s instructions.
But had been the presents to your women’s relationship while the Ukrainian hallway charitable? When it comes to to begin these gifts that are possible 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 simple? The actual only real possible one had been the 4th mind of charity, ‘other purposes useful to the community’.
An organisation that is solely for social or recreational purposes can not be charitable, however as their Honour noted ‘the trend of authority is apparently going in direction of upholding such presents where there are a few extra features’. In cases like this, the Ukrainian Women’s Association in Australia, Lidcombe branch had items which their Honour felt had ‘a charitable flavour’ (at 26). The Lidcombe branch produced big number of donations to Ukrainian based bodies in Australia and offshore including contributions into the Ukrainian School at Lidcombe to help needy kiddies in Sokal Ukraine, to deliver clothes into the bad of Ukraine, also to contribute to the veterans associated with the Ukrainian Partisan Army residing in the Ukraine who do maybe perhaps perhaps not be given a veteran’s retirement as they are in bad circumstances. The branch additionally endeavoured to deliver help for elderly past people.
Their Honour reviewed the appropriate case legislation, 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 so, the court held that the purposes associated with organisation needed to be examined holistically, into the light associated https://brightbrides.net/review/caribbeancupid with organisation’s development and history. In this respect, His Honour said (at 30):
It could appear to me personally that inside the ambit of what exactly is being considered in developing that list would consist of a small grouping of ladies fulfilling with the typical goal of marketing culture that is ukrainian trying to look after people of Ukrainian beginning in needy circumstances.
He determined that (at 44–45):
It should be recognized that there surely is no choice into the typical law world which goes quite in terms of the things I need to determine into the case that is present. Further, we noted 10 years ago in Radmanovich v Nedeljovic that this looked like an unwholesome space in charity legislation. This indicates if you ask me now, but, that that space is slowly being paid off. We now start thinking about, within the light associated with the product I have evaluated, that in twenty-first century brand New Southern Wales a trust in preference of a small grouping of females of a specific ethnicity, who seek a lot more than simple entertainment and social sex, but additionally to aid individuals of exactly the same cultural team and distribute that culture to advance the community purposes of a small grouping of Australians of a specific cultural beginning, is a charitable present.
The present had been split equally amongst the two contending recipients.
Regarding the present to renovate the hallway, the hall had been easily recognizable, but there clearly was no charitable function connected to the present. The data indicated that the hallway ended up being principally utilized being a location for Ukrainian social tasks or even for tasks associated with the regional Ukrainian Catholic school. The Attorney-General presented that the present had been an intention present and therefore with all the proof showing this type of close experience of other charitable activities, particularly utilizing the college, the present arrived to the course of gift suggestions for the upkeep of college structures that are often charitable. Their Honour consented.
Implications with this instance
This situation ended up being a good example of just just exactly how not to ever make a might. The deceased never ever had and married no young ones. The will ended up being split into 100 components, of which 65 were designated for charity. Nevertheless, the dead would not recognize the charitable recipients properly (except 1, 2 and 9), and every must be decided cy-pres by mediation, or because of the results of this instance (where two gift suggestions had been doubtful as with their charitable nature). Furthermore, there had already been family members supply application which lead to 10 parts being awarded to a family group supply receiver. Expenses implications had been apparent, and the costs issue to his Honour dealt at the conclusion with this situation. Expenses for the plaintiff (the executor) therefore the Attorney-General were granted from the property. Prices for the charities had been deducted from their circulation.
