Application by Riley [2016] NSWSC 1676

Supreme Court New South Wales

Medium Neutral Citation: Application by Riley [2016] NSWSC 1676 Hearing dates: 22 November 2016 Decision date: 22 November 2016 Jurisdiction: Equity Before: Stevenson J Decision: Trustee would be justified in applying that part of the Trust property that Mr Johnson bequeathed to "The Trustees of BoysTown at Beaudesert" cy pres to BoysTown Limited, now known as YourTown Limited.

Trustee is justified in concluding that this gift has not lapsed and that he is justified in applying this part of the Trust property to the Diocesan Trustees to be used by them for the purposes of St Joseph's Cowper Limited. Catchwords: TRUSTS AND TRUSTEES – application for judicial advice – bequest in will to charity at nominated location – where charity conducted by unincorporated association at date of will and later by incorporated association – charity no longer operative at location mentioned in the will – where further bequest to successors of nominated charity Legislation Cited: Association Incorporation Act 1984 (NSW) Trustee Act 1925 (NSW) Category: Principal judgment Parties: Matthew John Riley (Plaintiff) Representation: Counsel: J M Atkin

Solicitors: Riley & Riley (Plaintiff) File Number(s): SC 2016/269047

EX TEMPORE Judgment 1. Brian Johnson died on 30 August 2013. 2. He left a will dated 14 January 1994. 3. By that will he left the residue of his estate (which comprises some $232,000) to a named individual as to one-third and otherwise as follows: "[A] one third share to THE TRUSTEES OF BOYSTOWN at Beaudesert and a one third share to THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH OF THE DIOCESE OF LISMORE for the work of the successors of the Cowper Children's Home". [Emphasis in original] 1. Probate of the will was granted on 11 July 2016 to the plaintiff, Mr Matthew Riley ("the Trustee"). 2. The Trustee seeks advice under s 63 of the Trustee Act 1925 (NSW) about those bequests. 3. I am satisfied that all entities potentially affected by the bequests have been given notice of this application. None has sought to appear.