Kostka v The Ukrainian Council of brand new Southern Wales Incorporated 2013 NSWSC 222 (Supreme Court of the latest Southern Wales, Young AJ, 26 March 2013)
This instance concerned construction of this might of Taras Bodlak (the dead), who passed away on 2 January 2010, aged 95. The deceased left nine gift suggestions inside the 1996 will, as follows:
- 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 per cent.
Problems arose using the interpretation of those gift suggestions. More over, there is no setting up of every trusts within the might, or any specification of purposes, but rather outright gift ideas to organizations, including some which were unincorporated.
Their Honour stated that the basics had been well-established (at 3):
- Can there be any one human body which precisely fits the description when you look at the might? If therefore, that body provides and no enquiry that is further made.
- Or even, the court can get proof of surrounding circumstances although not direct declarations of intention to discover who had been meant.
- Then the court can look not only at surrounding circumstances but also direct declarations of intention if there are two or more bodies which exactly answer the description.
In this instance, there have been no bodies or organisations which exactly matched gift suggestions 3 to 8 from the list into the might. This needed a cy-pres solution. This means in instances where a testator discloses an over-all charitable intent ( maybe maybe not a particular intention to profit the known as organization), however the description associated with the beneficiaries is confusing, the court can authorise a circulation amongst bodies whose names are near the description utilized by the testator in their will, provided the Attorney-General (in the part as protector of charities) consents. The events was in fact to mediation plus the Attorney-General had consented into the arrangements that are mediated.
Regarding the problem of general intent that is charitable their Honour stated that (at 16–17):
The scheme for this will shows an intention to profit a few teams with Ukrainian or church connections you might say in a way that there clearly was clear advantage to your community that is ukrainian. Although Lidcombe is specified, it is really not uncommon for categories of individuals visiting Australia from European countries or Asia to cluster together in specific localities, whose impact however spreads through the State regarding the country. We hence try not to see this guide being a barrier to a discovering that the gift ideas may generally benefit the community. It really is quite clear that every counsel and lawyers consider that, aided by the exception that is possible of present in paragraph 7 into the Ukrainian ladies Association in Lidcombe and therefore respecting the hallway in paragraph 8, all of the gift suggestions in 1 to 9 are charitable as that term is recognized in Australian legislation. I actually do not require to worry that a few of the systems or a lot of the bodies seem to be unincorporated associations because the proof that has been handled when you look at the mediation shows that either you will find corporations or trustees or other explanations why there isn’t any issue into the association that is unincorporated designated.
Consequently, there is a broad charitable intent shown in the might. The cy-pres recipients associated with the charitable presents at 3 to 6 regarding the deceased’s list had been determined at mediation, and had been a part of their Honour’s instructions.
But had been the gift ideas to your women’s relationship plus the Ukrainian hallway charitable? When it comes to to begin these feasible presents, 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 instance. Did the present fall under one of these simple? Truly the only possible one had been the 4th head of charity, ‘other purposes advantageous to the community’.
An organisation that is purely for social or leisure purposes can’t be charitable, however as His Honour noted ‘the trend of authority is apparently going in the way of upholding such gift suggestions 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 big a number of donations to Ukrainian based figures in Australia and offshore including donations towards the Ukrainian School at Lidcombe to help needy kiddies in Sokal Ukraine, to deliver clothing into the bad of Ukraine, and also to subscribe to the veterans for the Ukrainian Partisan Army surviving in the Ukraine that do perhaps perhaps not get a veteran’s retirement as they are in bad circumstances. The branch additionally endeavoured to deliver support for elderly past people.
Their Honour reviewed the case that is relevant, of which there clearly was small, and the ones that there have been contained ‘very few good analogies’ (at 34). These situations included Victorian Women Lawyers Association Inc v Federal Commissioner of Taxation 2008 FCA 983. The court held that the purposes of the organisation had to be assessed holistically, in the light of the organisation’s formation and history in that case. In this respect, His Honour said (at 30):
It might appear to me personally that inside the ambit of what’s being considered in developing that list would add a small grouping of females fulfilling alongside the typical goal of marketing culture that is ukrainian trying to look after people of Ukrainian beginning in needy circumstances.
He concluded that (at 44–45):
It should be recognized that there surely is no decision when you look at the typical legislation globe which goes quite so far as the things I need certainly to determine within the case that is present. Further, I noted a decade ago in Radmanovich v Nedeljovic that this looked like an unwholesome space in charity legislation. This indicates in my opinion now, however, that that space is slowly being paid off. We now start thinking about, within the light associated with product We have evaluated, that in twenty-first century brand brand New Southern Wales a trust in preference of a small grouping of females of a certain ethnicity, who seek significantly more than mere relaxation and social sex, but additionally to aid individuals of the exact same cultural team and distribute that culture to help the community purposes of a group of Australians of a particular ethnic origin, is just a gift that is charitable.
The present had been split similarly 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. The data indicated that the hallway had been principally used as a location for Ukrainian social tasks and for tasks linked to the Ukrainian Catholic that is local school. The Attorney-General presented that the present was an intention present and therefore with all the proof showing this kind of connection that is close other charitable tasks, specially utilizing the college, the gift arrived to the course of gift ideas when it comes to upkeep of college structures which are often charitable. Their Honour consented.
Implications of the situation
This situation ended up being a typical example of just just exactly how never to produce a might. The deceased never ever had and married no young ones. The will was split into 100 components, of which 65 christiancupid.com were designated for charity. Nonetheless, the dead failed to recognize the charitable recipients properly (except 1, 2 and 9), and every needed to be determined cy-pres by mediation, or by the results of this instance (where two gift ideas had been doubtful as for their nature that is charitable). More over, there had already been family members supply application which lead to 10 components being granted to a household supply recipient. Expenses implications had been apparent, and their Honour dealt with the costs issue at the conclusion of the situation. Expenses for the plaintiff (the executor) plus the Attorney-General were granted from the property. Charges for the charities had been deducted from their distribution.