Morrison-Conway & Anor; Estate of the Late Judith Christine Walsh [2018] NSWSC 685

Supreme Court New South Wales

Medium Neutral Citation: Morrison-Conway & Anor; Estate of the Late Judith Christine Walsh [2018] NSWSC 685 Hearing dates: 28 March and 4 May 2018 Date of orders: 07 May 2018 Decision date: 21 May 2018 Jurisdiction: Equity Before: Slattery J Decision: Judicial Advice given. Plaintiff's costs to be paid out of the estate on the indemnity basis. Catchwords: JUDICIAL ADVICE – Trustee Act s 63 – proceedings seek judicial advice in relation to the identification of certain charities – proceedings are charitable trust proceedings "with respect to the administration of a charitable trust" within the Charitable Trusts Act 1993 s 5 – the Attorney General is a party – the will of a testatrix makes bequests to three organisations described as charities – whether or not each bequest describes an existing charitable organisation - whether any of the bequests fails for wont of sufficient identification of an existing charitable body – whether with respect to any failed gift the will exhibits a general charitable intention – whether, in respect of any failed gift, if the will exhibits a general charitable intention, the Court should order a cy-pres scheme

MEDIATION – Mediation of related proceedings for family provision ordered under Civil Procedure Act s 26 – the mediation to take place in the near term – if one or more of the gifts to charity were to fail, who is to represent the interests of charity associated with the gift at the mediation.

WILL – construction – proper construction of will which requires the executors and trustees to make a "diversity" of investments – meaning of expression – whether the expression alters the duties of the executors and trustees. Legislation Cited: Adoption Act 2000, s 95(2)(d) Births, Deaths and Marriages Registration Act 1995, s 50 Charities Act 2013 (Cth) 12(1)(a), Charitable Trusts Act 1993, ss 10, 13(2), 14 Health Services Act 1997 NSW Trustee & Guardian Act 2009, s 54 Succession Act 2006, ss 10, 27(1)(b) Trustee Act 1925, ss 14(C)(1)(b), 63 Uniform Civil Procedure Rules 2005, Division 1 in Part 55 Cases Cited: Application of Harnett and Cutts [2016] NSWSC 427 Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic [2012] NSWSC 1532 Attorney General v Bouchett 53 E.R. 580; (1858) 25 Beav. 116 Public Trustee v Attorney General [2005] NSWSC 1267 Ware v Cumberlege 52 E.R. 697; (1855) 20 Beav. 503; Estate of the late Chow Cho-Poon; Application for Judicial Advice [2013] NSWSC 844 Jackson v Attorney General [1917] 2 Ch 420 Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar Bishop of the Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 Permanent Trustee Co Ltd v State of New South Wales (Supreme Court (NSW), Santow J, 23 November 1995, unrep) Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 Re Daniels (deceased) [1970] VR 72 Re Davis; Hannen v Hillyer [1902] 1 Ch 876 Re Taylor (1888) 58 L.T. 538. Texts Cited: Neville and Ashe, Equity Proceedings with Precedents, at paragraph 506 Category: Principal judgment Parties: First Plaintiff: Peter George Morrison-Conway Second Plaintiff: Clare Josephine Andrews