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 associated with the will of Taras Bodlak (the deceased), whom passed away on 2 January 2010, aged 95. The deceased left nine gift ideas in their 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.
Problems arose using the interpretation among these presents. 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 principles that are basic well-established (at 3):
- Will there be any one human body which precisely fits the description into the might? If therefore, that human human body provides and no enquiry that is further made.
- If you don’t, the court can get proof surrounding circumstances yet not direct declarations of intention to learn who had been meant.
- If there are two main or maybe more systems which precisely answer the description, then your court can look not just 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 where a testator discloses an over-all intent that is charitable maybe maybe perhaps not a particular intention to profit the called organization), nevertheless the description associated with the beneficiaries is uncertain, the court can authorise a circulation amongst bodies whose names are near to the description employed by the testator in their will, so long as the Attorney-General (inside the part as protector of charities) consents. The events was in fact to mediation while the Attorney-General had consented towards the mediated arrangements made.
From the problem 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 in ways in a way that there is certainly clear advantage into 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 for the State associated with country. We therefore try not to see this guide as a barrier to a discovering that the gift ideas may generally benefit the community. It really caribbeancupid is quite clear that all counsel and lawyers consider that, aided by 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 gifts in 1 to 9 are charitable as that term is recognized in Australian legislation. I actually do not want to worry that a few of the bodies or all the bodies seem to be unincorporated associations since the evidence that has been handled within the mediation shows that either you can find corporations or trustees or any other explanations why there isn’t any problem within the unincorporated relationship being designated.
Consequently, there clearly was a basic charitable intent shown in the might. The cy-pres recipients for the charitable presents at 3 to 6 associated with the deceased’s list had been determined at mediation, and had been incorporated into their Honour’s sales.
But were the presents towards the women’s relationship plus the Ukrainian hallway charitable? For the firstly 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. His Honour considered the four classic charitable purposes as enunciated in Pemsel’s situation. Did the gift fall under one of these brilliant? The sole one that is possible the 4th mind of charity, ‘other purposes advantageous to the community’.
An organization that is solely for social or recreational purposes is not charitable, however as His Honour noted ‘the trend of authority is apparently going in direction of upholding such presents 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 contributions to your Ukrainian School at Lidcombe to aid needy kiddies in Sokal Ukraine, to deliver clothes to your bad of Ukraine, and also to subscribe to the veterans for the Ukrainian Partisan Army staying in the Ukraine that do perhaps not receive a veteran’s pension and are also in bad circumstances. The branch additionally endeavoured to deliver help for elderly past users.
Their Honour reviewed the case that is relevant, of which there is small, and people 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 organization needed to be evaluated holistically, within the light for the organisation’s development and history. In this respect, His Honour said (at 30):
It might appear to me personally that inside the ambit of what exactly is being considered in developing that list would add a small grouping of females fulfilling alongside the typical goal of advertising Ukrainian tradition and trying to look after people of Ukrainian origin in needy circumstances.
He determined that (at 44–45):
It should be acknowledged that there surely is no choice within the typical legislation globe which goes quite in terms of the things I need certainly to determine within the current situation. Further, we noted a decade ago in Radmanovich v Nedeljovic that this appeared as if an unwholesome space in charity legislation. It appears if you ask me now, but, that that space is slowly being paid off. We now start thinking about, into the light of this product We have evaluated, that in twenty-first century brand brand New Southern Wales a trust in preference of a small grouping of ladies of a specific ethnicity, who seek significantly more than simple activity and social sex, but in addition to help folks of the exact same cultural team and distribute that culture to help the community purposes of a team of Australians of a particular cultural beginning, is a charitable present.
The gift had been split equally involving the two contending recipients.
The hall was easily identifiable, but there was no charitable purpose attached to the gift as to the gift to renovate the hall. Evidence revealed that the hallway ended up being principally utilized as a place for Ukrainian social tasks or even for tasks associated with the Ukrainian Catholic that is local school. The Attorney-General presented that the present ended up being an objective present and that because of the proof showing this type of connection that is close other charitable activities, particularly aided by the college, the gift arrived to the course of presents when it comes to upkeep of college structures that are often charitable. Their Honour agreed.
Implications for this instance
This situation was a good example of exactly exactly how to not ever create a might. The deceased never ever had and married no kiddies. The will ended up being split into 100 components, of which 65 had been designated for charity. Nonetheless, the dead would not determine the charitable recipients properly (except 1, 2 and 9), and every must be determined cy-pres by mediation, or by the upshot of this situation (where two gift suggestions were doubtful as with their nature that is charitable). More over, there had already been household supply application which triggered 10 parts being granted to a household supply receiver. Expenses implications were apparent, and their Honour dealt with all the expenses issue at the conclusion with this situation. Costs associated with the plaintiff (the executor) and also the Attorney-General were granted out from the property. Prices for the charities had been deducted from their circulation.