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 Additional information: Estate of the late Judith Christine Walsh Representation: Counsel: Plaintiffs: A. Lakeman Solicitors: Plaintiffs: Maxine Jennifer Andronicos, Taperell Rutledge File Number(s): 2018/17207 Publication restriction: No Judgment 1. The plaintiffs, the executors of the late Judith Christine Walsh, seek the Court's advice, opinion and direction under Trustee Act 1925 s 63 in relation to the administration of her estate. The testatrix made a number of bequests to named charities in her last will, which was made on 15 March 2006. The principal questions for judicial advice are whether these named charities represent existing identifiable charities and whether, if one of these gifts were to fail, the will exhibits a general charitable intention, such that the Court should now authorise a scheme cy-pres to give effect to that general charitable intention. The executors also seek answers to a number of other incidental questions. 2. These proceedings are proceedings "with respect to the administration of a charitable trust" and are therefore "charitable trust proceedings" within the Charitable Trusts Act 1993 s 5. The Attorney General of New South Wales, who has a right of appearance in charitable trust proceedings, was given notice of the proceedings, appeared on 4 May 2018 and was made the defendant to the proceedings. 3. Mr Lakeman of counsel instructed by Taperell Rutledge Solicitors, appears for the plaintiffs. The Attorney General appeared by his counsel, Ms Z. Heger, instructed by the NSW Crown Solicitor's Office. 4. These reasons first outline the principal background facts, then deal with the questions upon which the plaintiffs seek the Court's advice and opinion. The facts were provided to the Court in a statement of facts prepared on behalf of the plaintiffs (and which became Exhibit A). The Court's advice, opinion and direction set out in these reasons, assumes the correctness of these facts. The narrative of these facts in these reasons represents a statement of those assumed facts, rather than expressing findings of fact. 5. Questions for decision are stated throughout these reasons and then answered in the court's orders. The Testatrix, her Will and her Gifts to Charity 1. The testatrix died on 14 November 2016 aged 71. She had been married twice: first, to James Lang and then to Robert Walsh. She is survived by her son Martin James Walsh. 2. Probate of the testatrix's March 2006 will was granted to the plaintiffs, Peter George Morrison-Conway (who is also called "Peter Morrison" in the will) and Clare Josephine Andrews. 3. The will appears to have been prepared without legal advice. But it contains appropriate revocation and attestation clauses. 4. After appointing the plaintiffs as executors, the will provided for the payment of outstanding debts "and the balance of the moneys to be put into a trust". The will then names "as Trustee's and Managers for the 3 chosen charities", three persons, Ross Shepard, an investment adviser, Peter Morrison, the first plaintiff, and Ronnie Thomas, a Telstra technician. 5. After giving instructions for her funeral and cremation, the will then makes provision for personal gifts and gifts to certain named charities as follows: SPECIAL GIFTS I leave the following Special gifts free of all duties and charges to: • Peter Morrison Every thing within the piercing lady section at 62 Terrigal Esplanade that operates as "The Piercing Lady" business, to do with as he so wishes. On the to have/dispose of or relocate at his own discretion. OR on the understanding that he will need to pay rent until the building is sold. For him to be able to stay in my home if he so wishes until it and all my goods and chattels are sold. My Son Martin Walsh. Where-about's unknown. $2000 and my Datsun 240Z motorcar. After payments of all my just debts, funeral and testamentary expenses I bequeath • 75% of my estate to be divided in equal parts and the shares are to be invested by the nominated trustee • These moneys must be invested by the trustee in the name as: 'Trustee for (Name of designated charity)' • The investment must be made as a Diversion of Investments (both off shore and Australian) to be tax effective, to maintain the principal and able to draw a reasonable monthly income with no penalties and placed in the appropriate charity's bank account for use at their own discretion. • If the charity wish to draw upon the principal, sufficient evidence must be provided and furnished to the trustee's for all other needs and to be released only at the direction and discretion of the Trustees. 25% to 1. State Centre for Critical Burns Unit for Children's Burn Research, Westmead Hospital, Locked NSW Bag 4001 Ph: 98450000 25% to 2. Dr John Holt Cancer Research Unit 0892854000 25% to 3. Orbis, The Flying eye hospital to provide eye surgery for the blind in third world county's The remaining 25% to be divided equally as follows" 1. Matthew Thomas Where-about's unknown 2. Dillon Walsh Where-about's unknown 3. Jordan Walsh Where-about's unknown In circumstances where my grandchildren are un-obtainable: For their share to be equally divided by the chosen charities listed below Where there are minor beneficiaries, that minor beneficiary cannot receive their full entitlements under this will until they attain the age of 25 years Until any minor beneficiary under this will is entitled to receive their benefits under this will, my Trustees have the power to invest the full amount and pay dividends into the beneficiary's own personal bank account or apply the whole or part of any income or capital to which that minor is entitled. In circumstances where the grandchildren are un-obtainable their share is to be equally divided by the chosen charities. 1 A For the maintenance, education, benefit or support of that minor beneficiary until that minor entitled to that property or: B To the guardian of that minor for the maintenance, education, benefit or support of that minor beneficiary until the minor beneficiary becomes entitled to that property. If the Trustee makes a payment to a guardian under this will the trustee is not required to see how that money is applied by the guardian. The investment must be made as a Diversion of Investments (both off shore and Australian). • To be tax effective, • To maintain the principal and able to draw a reasonable monthly income at the trustees call with no penalties with the interest placed in the child's bank account to help towards education needs etc. • If the Parent/guardian wishes to draw upon the principal sufficient evidence must be [illegible] furnished to the Trustees and to be release only on the direction and discretion of the trustees. In the case of any grandchild/ren were deceased before me, his/her 2 A Where a grandchild has already died or dies before me his/her share is to be divided equally amongst the 3 charities. Then such charities shall take, and if more than one then equally between them. The share of my estate of which such deceased grandchild of mine would have benefited had he/she survived me. B Where the grandchild have already died or die before me or before be-coming entitled to receive their benefit under the will, then I give that share to also be divided equally amongst the 3 charities then such charities shall take, and if more than one then that share of my estate which such deceased grandchild of mine would have taken had he/she survived me. 1. The first plaintiff, Peter Morrison-Conway is also one of the attesting witnesses to the will. Although the will gifts to him a business called "The Piercing Lady", that business had ceased to trade before the testatrix's death. So this gift has adeemed. Peter Morrison-Conway was also left a limited right of residence in the deceased's home at The Scenic Highway, Terrigal. This gift was void by reason of Mr Morrison-Conway having witnessed the will: Succession Act 2006, s 10. Since her death the testatrix's home has been tenanted and is soon to be listed for sale. 2. The third specific gift, a legacy of $2,000.00 and the Datsun motor vehicle, is to the deceased's son, Martin Walsh. 3. Mr Morrison-Conway is referred to in the will as the testatrix's "next of kin". But Mr Morison-Conway is not related to the testatrix. The incorrectness of this statement does not have any other bearing on the construction of the will. 4. As can be seen from the major portion of the will extracted above, some 25% of the testatrix's estate is not dealt with by the creation of the trust for the "three chosen charities" identified by the testatrix. The plaintiffs, as the executors, would remain the trustees for that 25% of the estate going to individual beneficiaries. 5. The executors are also presently defending a claim brought by Martin James Walsh against the estate for family provision under Succession Act Chapter 3. This claim is described in more detail later in these reasons. The family provision claim is the subject of a mediation to be held on 11 May 2018. 6. In overview therefore, the residue of the estate is divided, after payment of all just debts, funeral and testamentary expenses (and as a matter of construction after the payment of the legacy and the transfer of the motor vehicle left to Martin James Walsh) as to 75% of the residue equally among the three named charities (each therefore taking 25% of residue). The residue of the estate is thus divided: (1) as to 25% to the State Center (sic) for Critical Burns Unit for Children's Burns Research, Westmead Hospital; (2) as to 25% to the John Holt Cancer Research Unit; and (3) as to 25% to Orbis, The Flying Eye Hospital. 7. And finally 25% of the residuary estate is to be divided equally between Matthew Thomas (called "Mathew" in the will), Dillon Walsh and Jordon Walsh. A proviso to the residuary gift of a share of this 25% to these individuals is that the gift to each one fails if "my grandchildren are un-obtainable for their share". 8. In the event of failure of the gift to a named grandchild, there is a gift over to the charities, which are said to be "listed below". But as the full text of the will above shows, there are indeed no charities "listed below". Instead, the three charities are referred to earlier in the will. The charities described as "listed below" should upon the proper construction of the will be taken to refer to the three earlier named charities referred to earlier in the will. Applicable Legal Principles 1. The relief the plaintiffs seek is for Judicial Advice pursuant to Trustee Act 1925, section 63, which relevantly provides as follows: "(1) A trustee may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument. (2) If the trustee acts in accordance with the opinion advice or direction, the trustee shall be deemed, so far as regards the trustee's own responsibility, to have discharged the trustee's duty as trustee in the subject matter of the application, provided that the trustee has not been guilty of any fraud or wilful concealment or misrepresentation in obtaining the opinion advice or direction. (3) Rules of court may provide for the use, on an application under this section, of a written statement signed by the trustee or the trustee's Australian legal practitioner, or for the use of other material, instead of evidence. (4) Unless the rules of court otherwise provide, or the Court otherwise directs, it shall not be necessary to serve notice of the application on any person, or to adduce evidence by affidavit or otherwise in support of the application. (8) Where the question is who are the beneficiaries or what are their rights as between themselves, the trustee before conveying or distributing any property in accordance with the opinion advice or direction shall, unless the Court otherwise directs, give notice to any person whose rights as beneficiary may be prejudiced by the conveyance or distribution. (9) The notice shall state shortly the opinion advice or direction, and the intention of the trustee to convey or distribute in accordance therewith. (10) Any person who claims that the person's rights as beneficiary will be prejudiced by the conveyance or distribution may within such time as may be prescribed by rules of court, or as may be fixed by the Court, apply to the Court for such order or directions as the circumstances may require, and during such time and while the application is pending, the trustee shall abstain from making the conveyance or distribution. (11) Subject to subsection (10), and subject to any appeal, any person on whom notice of any application under this section is served, or to whom notice is given in accordance with subsection (8), shall be bound by any opinion advice direction or order given or made under this section as if the opinion advice direction or order had been given or made in proceedings to which the person was a party." 1. There are two potential subjects of s 63(1) advice. The first concerns any question respecting the management or administration of the trust property. The second concerns any question respecting the interpretation of the trust instrument. Both parts are engaged in the advice sought from the Court in these proceedings. 2. The principles governing such applications are well established and have been set out in the High Court's decision in 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. This application for judicial advice is also governed by the Uniform Civil Procedure Rules 2005, Division 1 in Part 55. 3. The various questions asked of the Court are considered below, together with such additional facts as are necessary for the Court to give advice relating to those questions. The Gift to the Burns Unit at Westmead Hospital 1. The plaintiffs ask the following question: in the events that have happened and on the true construction of the will of the late Judith Christine Walsh (the "Will"), is the State Center for Critical Burns Unit for Children's Burns Research, Westmead Hospital, in fact the Children's Hospital at Westmead being part of the Sydney Children's Hospitals Network (SCHN) the statutory health corporation established under the Health Services Act 1997. 2. In my opinion and for the reasons which follow, the Sydney Children's Hospitals Network (the Children's Hospital at Westmead) is sufficiently identified as the body to be benefited by the testatrix's gift through the use of the description in the will, "the State Center for Critical Burns Unit for Children's Burns Research, Westmead Hospital". 3. It is highly likely that the deceased mis-described the part of the SCHN known as the "Children's Hospital at Westmead". There is no organisation known as the "Critical Burns Unit for Children's Burns at Westmead Hospital". But for several reasons this description strongly indicates the part of the SCHN known as the "Children's Hospital at Westmead". 4. First, the deceased had an association with the Children's Hospital at Westmead (also referred to as "the Hospital" in these reasons). The evidence makes clear that the testatrix's details were in the database of the Hospital and that the Hospital had sent her appeals for funds, although she had apparently never donated to it during her lifetime. This confirms she was at least aware of the Hospital and its fundraising activities. 5. Secondly the Hospital is indeed the location of a well-established and publically well recognised burns unit for children. The solicitors for the plaintiff have written to the Kids Research Institute Children's Hospital at Westmead. Reply to those inquiries from the hospital and makes the following clear. The Children's Hospital at Westmead is part of the Sydney Children's Hospitals Network (SCHN), which is a legal entity going back for over a century. The hospital has the only specialised children's burn unit in New South Wales and also houses the Children's Hospital Burns Research Institute at Westmead. The Children's Hospital at Westmead has a high quality profile due to a number of children, followed by the media, who have become burn patients and have been treated within it. 6. Following the commencement of the Charities Act 2013 (Cth), SCHN was advised that it was no longer entitled to registration as a charity because it was considered to be a "Government Entity" under that Act. Previously its tax concession charity endorsement meant that it was automatically registered as a charity with the Australian Charities and Not For Profit Commission (ACNC) in 2012. But after the passage of the Charities Act 2013 (Cth), and after consultation with ACNC, SCHN decided to revoke its Charity Registration. But were SCHN not a government entity it would have a charitable purpose of advancing health within Charities Act 2013 (Cth), s 12(1)(a). And Charities Act 2013 (Cth), s 13 enables a government entity that would be a charity were it not a government entity to be treated as a charity by grant making funds with a purpose of providing money, property or benefits to charities or government entities. The making of donations to SCHN should be considered a charitable purpose and donations to SCHN maintain their tax deductible status. 7. The Critical Burns Unit was, in my view, intended to be a reference to the Burns Unit at the Children's Hospital at Westmead. 8. But it is also clear that the recipient of the gift under the deceased's will has been misdescribed. In those circumstances it is open to the Court to exercise its statutory power of rectification to give effect to the testator's intention without the need for a cy-pres scheme. That power is provided by Succession Act 2006, s 27(1)(b) which provides as follows: "27 COURT MAY RECTIFY A WILL (1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied the will does not carry out the testator's intentions because: (a) a clerical error was made, or (b) the will does not give effect to the testator's instructions." 1. Applying Succession Act 2006, s 27(1)(b) I the Court will rectify the will so that the disposition described in the will for "the State Center for Critical Burns Unit for Children's Burns Research, Westmead Hospital" can be applied to the "Burns Unit at the Children's Hospital at Westmead". The Gift to the Dr John Holt Cancer Research Unit 1. The second of the three charities mentioned by the testatrix is one described as "Dr John Holt Cancer Research Unit". 2. The next question to which the plaintiffs seek an answer is: whether they are justified in applying to the Attorney General pursuant to section 13(1)(a) of the Charitable Trusts Act 1993 for the establishment of a scheme in respect of the disposition in favour of Dr John Holt Cancer Research Unit in accordance with the provisions of Part 4 of the Act. 3. From the extensive enquiries made by the plaintiffs' solicitors there does not appear to be an organisation called, or one that was ever called, the "Dr John Holt Cancer Research Unit". But Dr John Holt is a real figure and does indeed appear to have been closely associated with a body known as the Radiowave Therapy Research Unit in Western Australia. These inquiries reveal that Dr John Holt is elderly, retired and no longer conducting medical practice or administering any charitable organisation. The correspondence on behalf of the plaintiffs was undertaken with his two sons Dr Keith Holt and Dr Michael Holt, who hold a Power of Attorney for him. 4. But after these enquiries it is not clear that Dr John Holt was associated with any identifiable Cancer Research Unit. There is also insufficient evidence for the Court to conclude that the "Dr John Holt Cancer Research Unit" is a reference to the "Radiowave Therapy Research Institute", with which Dr John Holt had some association. 5. The evidence suggests that there is no organisation known as the "Dr John Holt Cancer Research Unit". But the evidence does not establish that the testatrix intended to refer to the "Radiowave Therapy Research Institute". It is more likely that the testatrix's reference to the "Dr John Holt Cancer Research Unit" was not a mis-description of an organisation that existed but rather was a reference to an organisation that has never existed. 6. And the use of the words "three charities", one of which is the "Dr John Holt Cancer Research Unit", shows that the testatrix considered the Dr John Holt Cancer Research Unit to be a gift to charity, not a gift to John Holt personally. Failure of the Gift to Dr John Holt Cancer Research Unit 1. The testatrix's gift to the Dr John Holt Cancer Research Unit fails. The applicable legal principles that deal with what follows upon such a failure may be shortly stated. 2. Where a disposition in a will is made in favour of an organisation that has never existed, the gift will lapse unless it can be inferred that the donor intended to benefit a charitable purpose, in which case it is open to the Court to find a general charitable intention and to apply the gift cy-pres: Public Trustee v Attorney General [2005] NSWSC 1267. If however the donor intended to benefit a specific or particular charitable purpose, the gift cannot be applied cy-pres as this would be inconsistent with the donor's intention. A gift which fails ordinarily passes to the residuary beneficiaries if any are named or on intestacy. 3. The process of distinguishing between a general and a particular charitable intention is a question of construction of the will and, where permissible, by drawing inferences about the testator's wishes from surrounding circumstances: Public Trustee v The Attorney General & Ors [2005] NSWSC 1267at [17]. 4. A general charitable intention is to be presumed, unless there is evidence to the contrary in the instrument creating the will: Charitable Trusts Act, s 10. The question of whether s 10 applies to gifts to non-existent institutions remains an open question: Public Trustee v The Attorney General & Ors [2005] NSWSC 1267 at [25]. But the Court accepts the Attorney General's submissions that it is unnecessary to resolve that issue here, because in accordance with common law principles the Court finds that the testatrix's will exhibits a general charitable intention. 5. Where a testator makes a gift to a non-existent body but from the description of the body in the will it may be assumed that the testator intended it to be a body carrying on a charitable activity, then a court of equity will lean in favour of finding a general charitable intention from the slightest indication in the will to save the gift from lapse: Re Daniels (deceased) [1970] VR 72. In the case of non-existent charities the Court leans in favour of a general charitable purpose and will accept even a small indication that the testator's intention was to show a general charitable purpose and in that regard will treat significant the fact that the gift is interpolated between other charitable gifts: Re Davis; Hannen v Hillyer [1902] 1 Ch 876. 6. A general charitable intention should be inferred here for many reasons. First, the description of the organisation as a "Cancer Research Unit" is descriptive of a charitable purpose. The association of Dr John Holt with the Radiowave Therapy Research Unit also supports an inference that the testatrix had an intention to create a charitable trust. 7. Secondly, the disposition is interpolated between dispositions in favour of other charitable organisations, namely the Burns Unit and Orbis. The testatrix herself refers to the three organisations as charities. The reference in the will to three charities and the direction relating to the holding of monies in trust for the three charities indicates the testatrix's clear testamentary intention to create a testamentary trust for charitable purposes. On two occasions the testatrix mentions three charities. She refers to the "3 chosen chaitys (sic)" and she also refers to "the 3 charities". And there are references on three occasions to "charity" in relation to the 75% of her estate that she left to the three named organisations. 8. Thirdly, the will contains a gift over in favour of the three charities in the event of the failure of other non-charitable gifts. The will provides "in circumstances where my grandchildren are un-obtainable: "…for their share to be divided by the chosen charities listed below". This is a strong indicator of a general charitable intention. 9. It follows from these findings of a general charitable intention that the gift will never be allowed to fail. Moreover, it is open to the Court at general law to apply the funds represented by this failed gift under a scheme, or cy-pres, to ensure that the intention of the testatrix is carried out as nearly as possible in a way that she would have intended: Re Taylor (1888) 58 L.T. 538, 543. 10. But this failed gift does not exceed the value of $500,000. For the more cost effective creation of a scheme in respect of a failed gift of this size Charitable Trusts Act, Part 4 permits the Attorney General to establish a scheme for the administration of a charitable trust. The Court accepts the Attorney General's submissions and will refer the matter to the Attorney General for the establishment of the scheme pursuant to Charitable Trusts Act, s 13(2). The requirements of Charitable Trusts Act, s 14 are met here: the trust property is less than $500,000 – or other amount prescribed by regulation - and the establishment of a scheme is not a matter more fit to be dealt with by the Court. Orbis, The Flying Eye Hospital 1. The plaintiffs state their next question as follows: In the events that have happened and on the true construction of the Will is "Orbis, The flying eye hospital" to be identified with Project Orbis International, Inc. at 528th Avenue, New York in the United States of America. 2. In my opinion the plaintiffs would be justified in treating Project Orbis International as the charity intended to be to be benefited under the gift in the will to "Orbis, The flying eye hospital". The reasons for this require a close consideration of the evidence discovered by the plaintiffs and close regard to the testatrix's additional words in relation to this gift "…to provide surgery for the blind in third world county's (sic)". 3. The Court has had the benefit of evidence from Ms Norma Hopcraft an Associate, Donor Development, associated with the Orbis Flying Eye Hospital. Ms Hopcraft is in a position of Associate, Donor Development at "Project Orbis International". Ms Hopcraft states that the function of Orbis is to send a more than 400 highly qualified eye specialists to low income countries to train local eye health teams as to how to prevent and reverse various forms of blindness. The purpose of Orbis is to collect a voluntary faculty to train local eye health teams with the skills they need to correctly diagnose and treat eye illnesses within their communities. 4. Orbis has three modes of training. The first is the Flying Eye Hospital. This is an ophthalmic teaching hospital which has been fitted in the fuselage of an MD – Cargo plane which has been donated by FedEx. The second mode is through Cybersight. This is Orbis' telemedicine platform that allows expert volunteers to remotely provide ongoing support and mentorship to eye care teams by using the latest internet and mobile technologies. It allows Orbis to make an impact in places where a physical presence is not possible due to cost, logistical difficulties or security. Finally, Orbis provides a mode of training through local hospital based projects. Orbis partners with local hospitals and clinics to train doctors, nurses, optometrists and biomedical engineers to improve the level eye care in their local communities. 5. Through the application of this three part approach Orbis has achieved some significant results. Combining the Flying Eye hospitals and partner institutions Orbis has, completed more than 3.5 million eye screenings, 2.7 million of whom were children, held more than 40,000 training sessions for doctors, nurses and other eye care workers, and performed 82,587 eye surgeries of whom 19,258 were on children. These are the figures for 2016. The 2017 figures are still being compiled. In 2018 Orbis conducted 56 projects in 18 countries. Orbis has been endorsed as a not for profit corporation by the Internal Revenue Service of the United States. 6. Orbis does not have any record of any prior contact with the deceased. But the evidence of patterns of donation to Orbis suggests that this is not unusual. 7. Orbis depends solely on contributions from charitable donors, such as the testatrix to help it train localised health teams to fight avoidable blindness in the lowest income countries of the world. It has long standing country programs in Bangladesh, Ethiopia, India, Vietnam, South Africa, Zambia and China and ongoing projects in Mongolia, Nepal, Cameroon, Ghana, Guyana, Peru and Bolivia. It gives priority at the present time to the following areas of its work: prevention and treatment of childhood blindness, trachoma control, comprehensive eye care delivery for cataract and diabetic retinopathy treatment, rural eye care establishment, development of quality assurance and clinical excellence protocols, and support for the WAHO International Agency for prevention of blindness – Support for Vision 20/20, The Right to Sight. 8. In my view, there is little doubt that when the deceased referred in her will to "Orbis the Flying Eye Hospital to provide surgery for the blind in third world [countries]" that she was referring to Orbis, as described by Ms Hopcraft. The concept of a Flying Eye Hospital is Orbis' unique charitable concept and Orbis clearly directs much of its attention to surgery for the blind in less developed countries. I am comfortably satisfied that Project Orbis International is the charity identified in the deceased's will. 9. Ms Hopcraft deposes that Orbis would apply the funds from the estate to further Orbis' general programs, as described in these reasons. The 25% to the 3 Individuals and Matthew Thomas 1. A 25% portion of the testatrix's estate is to be divided among Matthew Thomas and Dillon Walsh and Jordon Walsh. The will implies that Peter George Morrison-Conway and Clare Josephine Andrews should continue as trustees of the will in respect of that part of the estate. 2. The three individual beneficiaries are not to take their entitlements under the will until they have attained the age of 25 years. The youngest grandchild Jordan Dane Walsh was born on 26 July 2003 and will not in fact attain the age of 25 until 2028. 3. The will gives the trustees a general discretion to provide to these beneficiaries income and capital of the estate from what they would be entitled when they attain the age of 25 years. 4. But potential difficulty arose in the interpretation of the will, where the testatrix described circumstances where "my grandchildren are un-obtainable". When these proceedings were commenced the whereabouts of the Testatrix's grandchild, Matthew Thomas were unknown. 5. But Matthew Thomas was ultimately found. This meant that the plaintiffs did not have to further pursue their stated intention of seeking a Benjamin Order, permitting the distribution of the estate among other beneficiaries as determined by the Court: Re Benjamin; Neville v Benjamin [1902] 1Ch 723, Application by NSW Trustee & Guardian (estate of the late Marko Sijakovic [2012] NSWSC 1532 and Application of Harnett and Cutts [2016] NSWSC 427. The Family Provision Claim and Representation at the Mediation 1. Proceedings have been instituted by Martin James Walsh, the son of the testatrix for provision from her estate. The Summons was filed on 7 November 2017 in proceedings case number 2017/336650 in the Equity Division of this Court. These proceedings have been referred to mediation under Civil Procedure Act 2005 s 26. In a series of further questions to the Court the plaintiffs ask who should represent the three charities at the mediation in the event instructions are required to enter into a compromise at the mediation. 2. Martin James Walsh has been left a legacy of $2,000.00 and a car with a probate value of $5,000.00. The probate value of the estate is $1,064,273.85. 3. The plaintiffs, as the executors, have a duty to uphold the terms of the will. But negotiating and implementing a settlement will be difficult where 75% of the residuary estate is left to charities, and where one of those named charities does not exist. It is prudent for the executors to seek the consent of the beneficiaries, upon whom the burden of any further provision for Mr Martin Walsh might fall as a result of a negotiated settlement. 4. It is probable that the family provision proceedings will be resolved at this mediation or possibly by other compromise before the Attorney General has an opportunity to settle the cy-pres scheme with respect to the failed gift to the "Dr John Holt Cancer Research Unit". 5. With respect to the interest represented by that failed gift, pending settlement of a cy-pres scheme and given the conclusion that the will exhibits a general charitable intention, the Attorney General will assume a role with respect to that fund as the guardian of the public interest in the enforcement of charities. Where a gift is for charity generally, no one can represent it but the Attorney General and the Attorney General should be there to represent such an interest: Ware v Cumberlege 52 E.R. 697; (1855) 20 Beav. 503 at E.R. 700-701 per Romilly MR ("Cumberlege"). But where there are specified individual charities the Attorney General's presence is not universally necessary; but may be required, for example, where the internal rules or conduct of the charity are being examined, or a scheme is being formulated: Cumberlege at 511. 6. In exercise of this role the Attorney General has the power to enter binding compromises on behalf of charities: Jackson v Attorney General [1917] 2 Ch 420. The Court will commonly sanction an arrangement which is agreed to by the Attorney General, without the Court necessarily ceding its own independent discretion in the matter: Attorney General v Bouchett 53 E.R. 580; (1858) 25 Beav. 116, per Romilly MR at 582. And see also Permanent Trustee Co Ltd v State of New South Wales (Supreme Court (NSW), Santow J, 23 November 1995, unreported). 7. The Attorney General should be directly represented at the mediation with respect to the failed gift to the John Holt Cancer Research Unit. The Court will therefore join the Attorney General as a third defendant to the family provision proceedings. This is the appropriate way to ensure that the public interest is protected. 8. The representatives of Orbis and the Burns Unit at Westmead Hospital will need to give instructions in relation to the possible settlement of the proceedings at mediation. It may well be that those instructions could be given either through, or with the assistance of, the Attorney General. But being established charities they can be consulted by the executors in the course of the mediation and do not need to be formally represented by the Attorney General at the mediation. Powers of Investment for the 25% of Residue 1. The also asked the question: whether they would be justified in making investments in accordance with the powers conferred by the Trustee Act 1925. This question relates to the terms of the testatrix's principal direction relating to investments for the gift of 25% of residue to the grandchildren, which appears in the words "The investment must be made as a Diversion of Investments (both offshore and Australian)…." 2. These words "Diversion of Investments" do not appear to have any legal or technical meaning. Nor is it clear whether the word "and" between "offshore" and "Australian" would be read conjunctively or disjunctively. 3. The Macquarie Dictionary (first ed 1981), gives four meanings to "diversion": "The act of diverting or turning aside, as from a course. A compulsory detour of a road or motorway, to avoid an obstacle, bottleneck, etc Distraction from business, care, etc: recreation; entertainment; amusement; a pastime. Mil. A feint intended to draw off attention from a point of main attack." 1. But in my view when she used these words the testatrix just seems to have made an error in terminology. The common sense interpretation of the testatrix's use of the word "diversion" is to give it the meaning "diversity" in context. So interpreted the expression "diversity of investments" is generally consistent with the mandates of Trustee Act 1925, s 14(C)(1)(b) which requires a trustee in exercising a power of investment, as far as appropriate to the circumstances of the trust, have regard to "the desirability of diversifying trust investments". 2. And the language used by the testatrix does not obviously seem to countermand Trustee Act 1925, s 14(C)(1)(b). A trustee is required to comply with that section unless expressly forbidden by the instrument: Trustee Act 1925, s 14(C)(3). In my view, the will should be interpreted as requiring the plaintiffs, the executors, here to do no more than comply with the Trustee Act 1925. Conclusion and Orders 1. Upon an application under Trustee Act s 63 the costs of the applicant executor would ordinarily be paid out of the estate on the indemnity basis and the orders below so provide. The Attorney General's costs would ordinarily be paid out of the assets that will comprise the three dispositions under the will made in favour of charity, as that is the part of the estate in respect of which his intervention was necessary. 2. Accordingly and for the reasons given, the Court makes the following orders and directions: 1. The plaintiffs would be justified in seeking and relying on instructions from the Sydney Children's Hospitals Network (SCHN) in settling the Family Provision claim in proceeding 2017/336650 at mediation and generally. 2. The Plaintiffs are justified in applying to the Attorney General pursuant to section 13(1)(a) of the Charitable Trusts Act 1993 for the establishment of a scheme in respect of the disposition in favour of Dr John Holt Cancer Research Unit in accordance with the provisions of Part 4 of the Act. 3. In the events that have happened and on the true construction of the Will the "Orbis, The flying eye hospital" is Project Orbis International, Inc. at 528th Avenue, New York in the United States of America. 4. The plaintiffs would be justified in seeking and relying on instructions from Project Orbis International, Inc in settling the Family Provision Claim in proceeding 2017/336650 at mediation or generally. 5. The plaintiffs would be justified in making investments in accordance with the powers conferred by the Trustee Act 1925. 6. The costs of the Plaintiffs in these proceedings be paid from the estate on an indemnity basis. 7. The costs of the Attorney General of New South Wales be paid on the ordinary basis and the burden of those costs is to be borne out of the assets that will comprise the three dispositions under the Will made in favour of charity. 8. The Attorney General of New South Wales be joined as the Third Defendant in the related Family Provision proceedings number 2017/336650. 9. The costs of the Attorney General of New South Wales joined as the Third Defendant in the related Family Provision proceedings number 2017/336650 be determined in those proceedings. ********** 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: 21 May 2018