Kostka v The Ukrainian Council of brand new Southern Wales Incorporated 2013 NSWSC 222 (Supreme Court of brand new Southern Wales, Young AJ, 26 March 2013)

This instance concerned construction of this might 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:

1. Australian Shevchenko Trust, Ukrainian Studies Foundation in Australia Limited in Lidcombe NSW: 10%.
2. Ukrainian Youth Association of Australia Ltd in Lidcombe NSW: 10%.
3. Ukrainian Class in Lidcombe NSW: 10%.
4. Ukrainian Ballet-Dancing Groups, School of Music and Arts in Lidcombe NSW: 10%.
5. Ukrainian Political Prisoners in Ukraine: 5%.
6. Ukrainian War Invalids in Ukraine: 5%.
7. Ukrainian Ladies Association in Lidcombe: 5%.
8. Renovation of Ukrainian Hall in Lidcombe NSW: 5%.
9. Ukrainian Catholic Church in Canberra: 5 per cent.

Problems arose because of the interpretation among these presents. Moreover, there is no setting up of any trusts within the might, or any specification of purposes, but rather outright presents to organizations, including some that have been unincorporated.

Their Honour stated that the principles that are basic well-established (at 3):

• Will there be any one human anatomy tsdate com which exactly fits the description into the might? If therefore, that human human body provides and no further enquiry is made.
• Or even, the court can get evidence of surrounding circumstances yet not direct declarations of intention to learn 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 full situation, there have been no figures or organisations which exactly matched gift suggestions 3 to 8 in the list when you look at the might. This needed a solution that is cy-pres. Which means in instances where a testator discloses an over-all intent that is charitable perhaps not a certain intention to profit the known as 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 (in their part as protector of charities) consents. The events was in fact to mediation and also the Attorney-General had consented into the arrangements that are mediated.

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 few teams with Ukrainian or church connections you might say in a way that there clearly was clear advantage towards the community that is ukrainian. Although Lidcombe is specified, it isn’t uncommon for categories of people arriving at Australia from Europe or Asia to cluster together in specific localities, whose impact nonetheless spreads through the continuing State associated with country. We hence try not to see this guide as being a barrier up to a discovering that the gift ideas may gain town generally speaking. It really is quite clear that every counsel and lawyers consider that, utilizing the feasible exception for the present in paragraph 7 to your Ukrainian ladies Association in Lidcombe and that respecting the hallway in paragraph 8, most of the gift suggestions in 1 to 9 are charitable as that term is comprehended in Australian legislation. I really do not want to worry that a number of the figures or all of the bodies seem to be unincorporated associations due to the fact evidence that has been managed within the mediation shows that either you will find corporations or trustees or other main reasons why there’s absolutely no issue into the unincorporated relationship being designated.

Consequently, there is a broad intent that is charitable in the might. The cy-pres recipients of this charitable gift ideas at 3 to 6 for 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 while the Ukrainian hallway charitable? For the 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. His Honour considered the four classic purposes that are charitable enunciated in Pemsel’s instance. Did the present belong to one of these brilliant? The actual only real possible one had been the fourth mind of charity, ‘other purposes good for the community’.

An organization this is certainly solely for social or leisure purposes is not charitable, however as their Honour noted ‘the trend of authority is apparently going in the way of upholding such gift suggestions where there are a few features’ that are additional. In cases like this, the Ukrainian Women’s Association in Australia, Lidcombe branch had things which their Honour felt had ‘a charitable flavour’ (at 26). The Lidcombe branch produced big group of donations to Ukrainian based figures in Australia and overseas including contributions towards the Ukrainian School at Lidcombe to help needy kids in Sokal Ukraine, to deliver clothes into the bad of Ukraine, also to subscribe to the veterans associated with the Ukrainian Partisan Army surviving in the Ukraine that do perhaps perhaps not be given a veteran’s retirement and generally are in bad circumstances. The branch additionally endeavoured to offer help for elderly past people.

Their Honour reviewed the appropriate instance legislation, of which there is small, and people 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 could appear to me personally that inside the ambit of what exactly is being considered in developing that list would consist of a team of females fulfilling with the common goal of advertising Ukrainian tradition and trying to take care of people of Ukrainian beginning in needy circumstances.

He figured (at 44–45):

It should be recognized there is no choice within the typical law world which goes quite so far as the things I need certainly to determine within the current situation. Further, we noted 10 years ago in Radmanovich v Nedeljovic that this appeared as if an unwholesome space in charity legislation. It appears if you ask me now, nevertheless, that that space is slowly being paid down. We now think about, within the light associated with product We have actually evaluated, that in twenty-first century New Southern Wales a trust in preference of a team of ladies of a specific ethnicity, who seek a lot more than simple relaxation and social sexual intercourse, but in addition to help folks of the exact same cultural group and distribute that culture to advance the community purposes of a small grouping of Australians of a specific ethnic beginning, is just a gift that is charitable.

The present had been split similarly involving the two contending recipients.

Regarding the present to renovate the hallway, the hall had been effortlessly recognizable, but there clearly was no charitable function connected to the present. The data revealed that the hallway had been principally utilized being a place for Ukrainian social tasks or for tasks linked to the regional Ukrainian Catholic school. The Attorney-General submitted that the present ended up being an intention gift and therefore aided by the proof showing this type of connection that is close other charitable tasks, specially with all the college, the present arrived to the course of gift ideas for the upkeep of college structures that are frequently charitable. Their Honour consented.

Implications for this instance

This situation ended up being a good example of exactly how to not ever produce a will. The deceased never ever married and had no kids. The will ended up being split into 100 components, of which 65 had been designated for charity. But, the dead failed to determine the charitable recipients precisely (except 1, 2 and 9), and every needed to be determined cy-pres by mediation, or by the results of this instance (where two presents had been doubtful as with their charitable nature). Furthermore, there had been a grouped family members supply application which led to 10 components being granted to a household provision recipient. Expenses implications had been apparent, and their Honour dealt with all the expenses problem by the end with this instance. Costs of this plaintiff (the executor) while the Attorney-General were granted from the property. Charges for the charities had been deducted from their circulation.

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