Muir v Open Brethren [1956] HCA 14

High Court of Australia Dixon C.J. Webb, Fullagar and Kitto JJ. Muir v Open Brethren [1956] HCA 14

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

April 13 Dixon C.J., Webb and Kitto JJ.

This appeal concerns the residuary bequest contained in the last will of Charles Edmund Button late of Burnie who died on 10th November 1945. The will was duly admitted to probate. The question is whether the residuary provision is a valid charitable bequest or is void. The contest is between parties representing those who would take as on an intestacy on the one side and, on the other side, the Attorney-General representing the interest of charities and the particular body in question, namely the Open Brethren. The Open Brethren constitutes a religious body which, according to the affidavit, is known throughout the English-speaking world. There is a branch at Burnie in Tasmania consisting of an assembly which is self-governing. At Burnie there is a gospel hall held upon trust for the Open Brethren.

After appointing executors and trustees the testator's will gives, devises and bequeaths to his trustees all his real and personal property upon trust for conversion. Subject to payment of debts, the will directs that the net proceeds of conversion should be dealt with by the trustees in the manner which it proceeds to direct. There are certain specific bequests and certain directions to pay sums of money to named charitable institutions. The residuary gift the validity of which is now in question is as follows:—"To pay the balance (if any) of the said net proceeds into the funds of the Assembly or body of Christians commonly known as "Open Brethren" meeting at the date of this my Will in the Gospel Hall Wilson Street Burnie aforesaid such sum to be employed by them in relieving cases of need and distress and in assisting persons in indigent circumstances and in particular (but not exclusively or in any way that shall limit their discretion) in assisting and relieving persons who have been or shall be adversely affected by the effects of the War in which the British Commonwealth of Nations is now engaged and I declare that the receipt or acknowledgement of not less than three of the Elder Brethren belonging to the said Assembly or body of Christians shall be a good discharge to my Trustees in respect of the said monies and I declare that any Brethren who are accustomed to regularly attend the business meetings of the said Assembly shall be deemed to be "Elder Brethren" within the meaning of the said term so used in my said Will."