Supreme Court New South Wales Medium Neutral Citation: Bates v Trustees of the Redemptorist Fathers [2015] NSWSC 539 Hearing dates: 4 May 2015 Decision date: 04 May 2015 Jurisdiction: Equity Division Before: Stevenson J Decision: Declare that, on the proper construction of the last will of Paul Anthony Gerard Bates, the gift in cl 5(f) is a valid gift to the first defendant Catchwords: PROCEDURE – declaration ought not to be made merely because the parties consent; WILLS AND ESTATES – construction of a will – words used – whether terms of the will and surrounding circumstances suggest the deceased intended to make a valid gift – the testator's "armchair" Legislation Cited: Charitable Trusts Act 1993 (NSW) Roman Catholic Church Communities' Lands Act 1942 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Boyes v Cook (1880) 14 Ch D 53 Fell v Fell [1922] HCA 55; 31 CLR 268 Hatzantonis v Lawrence [2003] NSWSC 914 Parry v Haisma [2012] NSWSC 290 Perrin v Morgan [1943] AC 399 Williams v Powell [1894] 1 WN 141 Texts Cited: G E Dal Pont and K F Mackie, Law of Succession, (2013, LexisNexis Butterworths) P W Young, C Croft and M Smith, On Equity, (2009, Thomson Reuters Lawbook Co.) Category: Principal judgment Parties: James Patrick Bates (First Plaintiff) Doris Anne Bates (Second Plaintiff) Trustees of the Redemptorist Fathers pursuant to Roman Catholic Church Communities' Lands Act 1942 (NSW) (First Defendant) John Christopher Bates in his capacity as representative of the next of kin of the late Paul Anthony Gerard Bates entitled on intestacy (Second Defendant) Representation: Counsel: M Gorrick (Plaintiffs) J C Hewitt (First Defendant) J J Loofs (Second Defendant) Solicitors: Catherine Henry Partners (Plaintiffs) Hunt & Hunt Lawyers (First Defendant) Teece Hodgson & Ward Solicitors (Second Defendant) File Number(s): SC 2014/188494 Judgment Introduction 1. These proceedings concern the proper construction of the last will ("the Will") of the late Paul Anthony Gerard Bates ("the deceased") who died on 30 July 2013. The Will is dated 13 March 2002. 2. Probate of the Will was given to the plaintiffs, Mr James Bates (a cousin of the deceased) and his wife, Mrs Doris Bates, on 15 October 2013. 3. The deceased never married, and had no children. 4. The deceased left the whole of his estate to his mother, Mrs Edna Bates, and in the event that she predeceased him (which she did), to five legatees (totalling $50,000) and otherwise: "[T]o the REDEMPTORIST MONASTERY of Woodstock Street, Mayfield the rest and residue of my estate and I DIRECT that the receipt of the Father Rector of such monastery at that time shall be a full and sufficient discharge to my Trustees therefore." [Emphasis in original] 1. At the date of his death, the net worth of the deceased's estate was in excess of $2.5 million. The value of the gift of the residue is in the order of $2.3 million. 2. If the gift to the "Redemptorist Monastery" fails, the residue of the deceased's estate will be distributed under the rules of intestacy to the deceased's nine surviving cousins (including Mr James Bates). Those cousins are represented by the second defendant, Mr John Bates. Mr John Bates is also a cousin of the deceased. The parties agreed that he should be appointed as representative of the next of kin of the deceased pursuant to Uniform Civil Procedure Rules r 7.10 for the purpose of the proceedings. 3. The first defendant is the Trustees of the Redemptorist Fathers ("the Trustees"). "Trustees of the Redemptorist Fathers" is the corporate name of the body corporate that is the trustee of property for a community of the Catholic Church named "The Fathers of the Congregation of the Most Holy Redeemer": s 4(2) and Sch 2 of the Roman Catholic Church Communities' Lands Act 1942 (NSW) ("the Act"). I shall refer to that community as the "Redemptorist Fathers". 4. In related proceedings, not listed for hearing before me, Ms Yadwiga Davies (one of the legatees to whom I have referred) makes a claim for further provision against the deceased's estate under s 59 of the Succession Act 2006 (NSW). 5. It was agreed between the parties that the will construction suit should be heard before Ms Davies's claim for provision. 6. When this matter was called on for hearing on 4 May 2015, I was informed that the parties had reached agreement in principle to settle both matters. 7. Later in the day, I was invited to make consent orders disposing finally of both matters. 8. I was also asked to make the following declaration: "[T]hat upon the true construction of the Will of the deceased and in the events that have happened the gift in [the clause set out at [4] above] of the last will of the [deceased] is a valid gift to the first defendant." 1. I drew counsel's attention to the fact that the making of a declaration is a judicial act and ought not be made merely because the parties consent: for example Williams v Powell [1894] 1 WN 141 and see generally P W Young, C Croft and M Smith, On Equity, (2009, Thomson Reuters Lawbook Co.) at [16.830]. 2. However, as I had formed the view, based on counsel's succinct and helpful pre-trial submissions, that I should make such a declaration, I did so on 4 May 2015 and said I would give brief reasons in due course. These are those reasons. Consideration 1. The following is drawn in large part, and with gratitude, from the submissions of counsel, and particularly those of Mr Hewitt, who appeared for the Trustees. 2. The Redemptorist Fathers is a "community" for the purposes of the Act. The Trustees, as trustee for that community, is, by virtue of s 4 and Sch 2 of the Act, a body corporate "having perpetual succession and a common seal, and being capable of acquiring, holding and disposing of any property, real or personal…and of doing and suffering all such acts and things as bodies corporate may by law do or suffer". 3. By reason of: 1. s 8 of the Act, all community land of the Redemptorist Fathers vests in the Trustees; 2. s 10(1)(a)(i) of the Act, the Trustees have the power "to purchase, take on lease or acquire by gift, devise, bequest, exchange or otherwise any real or personal property"; and 3. s 15 of the Act: "All property real or personal for the time being vested in [the Trustees] shall be held…on the trusts, if any, expressly declared in respect thereof and if no such trusts have been expressly declared on trust for [the Redemptorist Fathers] for the use, purposes and benefit of such community…". 1. Each of these sections was applicable at the date of the making of the Will: that is, 13 March 2002. 2. The Will refers to the "Redemptorist Monastery of Woodstock Street, Mayfield". 3. It is common ground that, on the date of the Will, there was such a building in Woodstock Street, Mayfield (a suburb of Newcastle). 4. The Redemptorist Fathers purchased the land in Mayfield in 1885. A monastery, known as the "Redemptorist Monastery" ("the Monastery"), officially opened on that site on 2 August 1887. The edition of the certificate of title issued on 12 October 1972 shows the Trustees then to be the registered proprietors of the land. 5. The Redemptorist Fathers are missionaries. The Redemptorist Fathers are classified as a charitable institution by the Australian Taxation Office and are registered as a charity with the Australian Charities and Not-for-profits Commission. 6. The Monastery was a place where the Redemptorist Fathers carried out their religious works both in and outside the Diocese of Maitland. All operations for the Redemptorist Fathers across Australia, New Zealand and Asia were initially carried out from the Monastery. The Monastery was regarded as the "mother house" for the Redemptorist Fathers. 7. On 31 December 2003, the Trustees sold the Monastery to the Newcastle Diocese of the Catholic Church. After the sale, the Redemptorist Fathers continued the activities that had been conducted at the Monastery at another monastery in Galong and also continued their activities in the Newcastle area. Applicable principles 1. There was no dispute before me as to the applicable principles. 2. The following summary of the relevant principles comes from Mr Hewitt's submissions. 3. In construing the language of a will, the starting point is "the fundamental rule" stated by Viscount Simon LC in Perrin v Morgan [1943] AC 399 at 406 which is "to put on the words used the meaning which, having regard to the terms of the will, the testator intended": Hatzantonis v Lawrence [2003] NSWSC 914 per Bryson J at [6]; Parry v Haisma [2012] NSWSC 290 per White J at [52]. 4. Evidence of the circumstances surrounding the testator is admissible to assist in the construction of the will, but direct evidence of testamentary intention is not admissible except in the case of an equivocation (that is, a case where the words of the will apply accurately and equally to two or more persons or things): Parry v Haisma at [10] to [13]. It is common ground that, as the Will was made prior to 1 March 2008, regard cannot be had to the provisions of s 32 of the Succession Act. 5. The court will endeavour to adopt a construction that will avoid an intestacy so that, in ascertaining testamentary intention, the court will not presume that the testator meant to die intestate if, on a fair construction, there is reason for saying the contrary: Fell v Fell [1922] HCA 55; 31 CLR 268 per Isaacs J at 275 to 276, 279; G E Dal Pont and K F Mackie, Law of Succession, (2013, LexisNexis Butterworths) at [8.24], [9.4]. The proper construction of the Will 1. The plaintiffs, as executors, have not joined the Attorney General of NSW in her capacity as the protector of charities. However, the plaintiffs accept that were I to conclude that, as a matter of construction of the Will, the gift to "the Redemptorist Monastery of Woodstock Street, Mayfield" fails, but that the Will bespoke a charitable purpose on the part of the deceased, I could direct that a scheme for the administration of a charitable trust be established, and refer the matter to the Attorney General for the establishment of such a scheme in accordance with the Court's directions (for example ss 13(2) and 14 of the Charitable Trusts Act 1993 (NSW)). 2. However, the conclusion to which I have come is that, as a matter of construction of the Will, the gift to the "Redemptorist Monastery of Woodstock Street, Mayfield" is a valid gift to the Trustees and that the question of the establishment of a scheme does not arise. 3. The evidence establishes that the deceased was a devout Catholic and regularly attended services at the Monastery. At one stage, the deceased's late father, Mr Keith Bates, was admitted to hospital. When he required a blood transfusion, one of the trainee priests from the Monastery gave blood for him. Both the deceased, and his mother, made references to this act and attributed it with saving the deceased's father's life. The deceased's father died on 16 June 1981. 4. As Mr Hewitt submitted, the fundamental question in this case is who the deceased intended to benefit by using the words "the Redemptorist Monastery of Woodstock Street, Mayfield" when he made the Will. 5. The "Redemptorist Monastery" is itself a building. Obviously the deceased did not intend to leave his estate to the building itself. 6. It seems to me clear that the deceased intended to leave his estate to that community of the Catholic Church as, at the date of the Will, conducted church works in and from the Monastery: namely, the Redemptorist Fathers. 7. Mr Gorrick, who appeared for the plaintiffs, put the matter picturesquely when he said that my task was to place myself "in the deceased's armchair". Mr Gorrick drew my attention to the observations of James LC in Boyes v Cook (1880) 14 Ch D 53 at 56: "You may place yourself, so to speak, in his arm-chair, and consider the circumstances by which he was surrounded when he made his will to assist you in arriving at his intention." 1. So placed, it appears to me to be clear that the deceased intended to benefit the Redemptorist Fathers, and thus the Trustees. 2. For those reasons, I was content to make the declaration sought by the parties. ********** 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: 08 May 2015