Davis v Adventist Development and Relief Agency [2006] NSWSC 876

New South Wales Supreme Court

CITATION : Davis v Adventist Development and Relief Agency [2006] NSWSC 876

HEARING DATE(S) : 29 August 2006

JUDGMENT DATE : 29 August 2006

JURISDICTION : Equity Division

JUDGMENT OF : Windeyer J at 1

DECISION : See paragraph 9 of Judgment.

CATCHWORDS : WILLS PROBATE AND ADMINISTRATION - construction of will - intention of deceased to give residue to charitable organisation - charitable organisation does not now exist in previous form - gift to organisation now incorporated

Darrell Kelvin Davis (First Plaintiff) John Joseph Cordwiner (Second Plaintiff) PARTIES : Adventist Development and Relief Agency Australia Limited (First Defendant) Australasian Conference Association Limited (Second Defendant) Veronica Joyce McDonald (Third Defendant) Betty June Evans (Fourth Defendant)

FILE NUMBER(S) : SC 2743 of 2006

Mr B Townsend (Plaintiffs) COUNSEL : Mr A Hill (First and Second Defendants) No appearance (Third and Fourth Defendants)

Oliver Campbell (Plaintiffs) SOLICITORS : Brennan Tipple Partners (First and Second Defendants) No appearance (Third and Fourth Defendants)

- 2 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

TUESDAY 29 AUGUST 2006

2743/06 DARRELL KELVIN DAVIS & ANOR v ADVENTIST DEVELOPMENT AND RELIEF AGENCY OF AUSTRALIA LIMITED AND ORS

JUDGMENT

1 HIS HONOUR: This is a will construction case. The deceased Iris Leila Davis died on 24th July 2004. She left what is best described as a homemade will dated 7th December 2001. Probate was granted to Mr Darrell Kelvin Davis and John Joseph Cordowiner the plaintiffs in this action on 8th July 2005. 2 Under her will the deceased gave twelve pecuniary legacies in varying sums between $300 and $20,000. She gave some of her furniture to one of her sons and then she gave "whatever money is left to go to the ADRA for the Seventh-Day Adventist Conference". 3 The first question for decision is whether that last gift carries the residue of the estate of the deceased. That estate at the death of the deceased comprised a property at 36 Catherine Street, Cessnock said to be worth $180,000, furniture and effects estimated to be worth $4,000 and monies in the Newcastle Permanent Building Society of $4,495. There is evidence as to the history of the bank account of the deceased which shows that over a period of time she certainly did not have sufficient funds in the nature of money or other cash holdings to pay the pecuniary legacies. As this is a homemade will, I think it perfectly clear that on its proper construction the residuary gift was a gift of whatever was left in the estate after payment out of the pecuniary legacies. 4 It is not argued otherwise by the next of kin who have been served and, while they have not entered appearances, have written letters saying that they wish to take no part in the proceedings. It is not necessary to go into the many cases which justify the decision to which I have come because I think it is perfectly clear in this case what the intention of the deceased was. 5 The next question then is whether or not the residuary gift is good. The problem arises here because the wording, on its face, may not be thought to be quite appropriate when taking into account the constitution of the bodies forming part of the Seventh-Day Adventist Church. The evidence is that the Seventh-Day Adventist Church is an unincorporated association, but it has what might be described as its holding entity, a company Australasian Conference Association Limited. ADRA stands for Adventist Development and Relief Agency. At the date of the will ADRA was an unincorporated association. Nevertheless, the evidence is that it was formed for charitable purposes. It was incorporated on 8th June 2004 as Adventist Development and Relief Agency Limited. It is now a company limited by guarantee. 6 The evidence establishes that the Australian Conference Association Limited holds the Adventist church trust property on various trusts and holds the property of the Adventist Development and Relief Agency on trust for the purposes of that agency. 7 In those circumstances I think it proper for the Court to conclude that the deceased intended her residuary estate to be held for the charitable purposes of the Adventist Development and Relief Agency, that being an agency of Australasian Conference Association Limited, The words "The Seventh-Day Adventist Conference" being a misnomer for the second defendant. 8 While in some ways this seems to be giving a construction which might be thought to be generous in accordance with the wording, it seems to me to be proper for the Court to conclude that that was the intention of the deceased and I propose to so hold. 9 I order that upon the true construction of the will of Iris Leila Davis (deceased) her residuary estate is left to the Australasian Conference Association Limited to be applied for the charitable purposes of Adventist Development and Relief Agency Australia Limited. The costs of the plaintiff and the first and second defendants are to be paid out of the estate of the deceased, those of the plaintiffs' on the indemnity basis. The exhibits can be returned. **********