Application of Sachs [2012] NSWSC 1410

Supreme Court New South Wales

Medium Neutral Citation: Application of Sachs [2012] NSWSC 1410 Hearing dates: 13 November 2012 Decision date: 13 November 2012 Before: White J Decision: Consent orders made. Catchwords: WILLS, PROBATE AND ADMINISTRATION - TRUSTS AND TRUSTEES - judicial advice - bequest to charity organisation that was subsequently deregistered - general charitable intention - gift to successor organisation Legislation Cited: Trustee Act 1925 (NSW) Category: Principal judgment Parties: Gregory Lewis Sachs and Jenny Littman (Nee Ferns) as executors of the Estate of Alan David Hawkins (Plaintiffs) Representation: Counsel: M Tyson (Plaintiff) B Skinner (Save the Children Fund) Solicitors: Sachs Gerace Lawyers (Plaintiffs) File Number(s): 2012/215797

Judgment 1HIS HONOUR: This is an application for judicial advice or direction pursuant to s 63 of the Trustee Act 1925 (NSW). 2The plaintiffs are the executors of the will of Alan David Hawkins, who died on 18 March 2009. By his will made on 3 March 2000 he gave half of his net estate to "Save the Children" at Level 3, 123 Clarence Street, Sydney. At the time of the will there was in existence a public company limited by guarantee called Save the Children (NSW), whose registered office was Level 3, 123 Clarence Street, Sydney. It is clear that it was the intended beneficiary of the gift. 3On 11 April it was resolved that Save the Children (NSW) be wound up voluntarily. That was for the purpose of transferring its assets to a national organisation originally called Save the Children Fund Australia, now called Save the Children Australia. The assets were duly transferred. Save the Children Australia is the successor of Save the Children (NSW). 4Save the Children (NSW) was deregistered. Whilst the gift would have lapsed, it is quite clear that the testator had a general charitable intention and it is quite clear that the gift would be directed to be paid to the successor organisation. The executors are justified, and should be directed, to make the payment to the organisation now known as Save the Children Australia. 5The person who would have taken on the partial intestacy is the deceased's aunt. She survived the deceased but has herself died. The executors of her estate consent to the orders which are now agreed. It is appropriate to give the direction pursuant to s 63 of the Trustee Act as sought. 6For these reasons I make orders in accordance with the document entitled Consent Orders signed by counsel for the executors and for Save the Children Australia, which I initial and date today and place with the papers. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2012