Elizabeth Joan Paulsen as executor of the estate of the late Miriam Lesley Jean Douglass v Northern Sydney Local Health District [2018] NSWSC 1473

Supreme Court New South Wales

Medium Neutral Citation: Elizabeth Joan Paulsen as executor of the estate of the late Miriam Lesley Jean Douglass v Northern Sydney Local Health District [2018] NSWSC 1473 Hearing dates: 9 July 2018 Date of orders: 03 October 2018 Decision date: 03 October 2018 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) Declare that The Norman Anderson and Norman Memorial Trust (referred to in these proceedings as the First Trust) had "ceased to exist" (within the meaning of that expression as used in the deceased's will dated 29 September 1999 – the deceased's Will) at the time of the death of the late Miriam Lesley Jean Douglass (the deceased) on 18 May 2016. (2) Order that the questions posed for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) or in the Court's inherent jurisdiction should be answered as follows: (a) On the true construction of the deceased's Will and in the events that have happened, the executor's discretion to choose a charitable organisation in New South Wales with the same or similar purposes as the First Trust has been enlivened; (b) The executor is justified in applying the estate's residue to The Garvan Institute of Medical Research (ABN 62 330 391 937) (The Garvan Institute) for the purpose of funding research into breast and prostate cancer only in the terms contemplated in the letter dated 13 December 2017 from The Garvan Institute to the executor; and (c) This question does not arise in light of the answers to (a) and (b) above. (3) Order that the receipt of the proper officer for the time being of The Garvan Institute will operate as a full and final release in favour of the executor in respect of the residuary gift contained in paragraph (f) of the deceased's Will, probate of which was granted to the executor on 21 October 2016. (4) Order that the executor's costs of this application be paid out of the estate of the deceased on an indemnity basis. (5) Otherwise make no order as to costs with the intent that the defendant pay its own costs. Catchwords: SUCCESSION – Wills, probate and administration – Construction and effect of testamentary dispositions – Where testator devised whole real property and residue of personal property to a named trust – Where the named trust was the subject of court orders in 2008 for administration cy-près – Held the named trust had "ceased to exist" within the meaning of the Will and the executor was entitled to select another charitable organisation as the residuary beneficiary Legislation Cited: Charitable Trusts Act 1993 (NSW), s 9 Garvan Institute of Medical Research Act 1984 (NSW), ss 5, 6 Health Services Amendment (Local Health Districts and Boards) Act 2011 (NSW), Sch 1 Health Services Amendment (Local Health Networks) Act 2010 (NSW), Sch 1 Trustee Act 1925 (NSW), s 63 Cases Cited: AG (NSW) v Perpetual Trustee Company Ltd (1940) 63 CLR 209; [1940] HCA 12 Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62; [2015] HCA 6 Morlea Professional Services Pty Ltd v Richard Walter Pty Ltd (in liq) (1999) 96 FCR 217; [1999] FCA 1820; 169 ALR 419 Perpetual Trustees (WA) Ltd v Naso (1999) 21 WAR 191; [1999] WASCA 80 Re Estate Late Chow Cho-Poon [2013] NSWSC 844 Re Tyrie (No 1) [1972] VR 168 Saunders v Vautier (1841) 4 Beav 115; 49 ER 282 Texts Cited: J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis) Category: Principal judgment Parties: Elizabeth Joan Paulsen (Plaintiff as executor of the estate of the late Miriam Lesley Jean Douglass) Northern Sydney Local Health District (Defendant) Representation: Counsel: N Kirby (Plaintiff) MB Evans (Defendant)