Application for exoneration by a trustee

Sir Colin Mackenzie, was an Australian anatomist, benefactor, museum administrator and director who died in 1938; his wife Lady Winifred MacKenzie died on 21 February 1972.

Lady Winifred Iris Evelyn MacKenzie left a will dated 4 April 1966 and codicil dated 14 February 1969 (‘the will’) establishing the Sir Colin and Lady MacKenzie Trust Fund – a charitable trust (‘the trust’); the income of the trust was to be applied one third in favour of the committee administering the Sir Colin MacKenzie Sanctuary (‘the gift to the sanctuary’) upon the condition that its name never be altered from the ‘Sir Colin MacKenzie Sanctuary’; and two thirds for the provision of prizes and grants for studies in comparative anatomy (‘the gift for anatomical studies’)

Since the early 1980s, the sanctuary has been commonly known as ‘Healesville Sanctuary’; this name is used for advertising and promotional purposes. In June 2002 the registration of the name ‘Sir Colin MacKenzie Sanctuary’ lapsed; it was re-registered in February 2014.

The trustee of the trust (‘the trustee’) sought answers to the following questions concerning the administration of the trust:

(a) whether the name of the Sir Colin MacKenzie Sanctuary has been altered from the ‘Sir Colin MacKenzie Sanctuary’;

(b) whether the result of any such alteration is that the gift has lapsed; and

(c) if so, how funds gifted to the sanctuary ought to be applied.

The second issue is whether the alteration of the name of the sanctuary was contrary to the condition imposed by the will. If so, the gift will be said to have lapsed.

The will directed that, if the name of the sanctuary is altered, the funds which comprise the gift to the sanctuary become a part of the gift for anatomical studies.

The Court ordered that the gift to the sanctuary according to clause 3(ii)(A) of the will lapsed on 27 June 2002. The funds gifted are to be applied as part of the gift for anatomical studies according to clause 3(ii)(B).

Clause 3(ii)(B) of the deceased’s will provides that the allocation of prizes and grants shall be decided by the committee.  

In September 2010 the Court declared that the gift in clause 3(ii)(B) could no longer be carried out according to the direction in the will and authorised the trustee to administer the gift for anatomical studies cy près.

In construing the intention of the testator the Court should give regard to the text of the will only, and not speculate as to the testator’s broader intentions by reference to extrinsic evidence. 

A condition of the will clearly and unambiguously imposes a condition that the name of the sanctuary never be altered from the ‘Sir Colin MacKenzie Sanctuary’  the alteration of the name of the sanctuary from the ‘Sir Colin MacKenzie Sanctuary’ was a breach of the condition imposed the will. Accordingly, the gift to the sanctuary has lapsed when the name ‘Sir Colin MacKenzie Sanctuary’ ceased to be registered on 27 June 2002.

Correspondence received on 30 September 2009 appeared to confirm that the name had been changed. Although nothing indicates that the plaintiff acted with anything less than good faith in making payments on 22 October 2009, 2 May 2011 and 2 May 2012 those payments were not made reasonably as the plaintiff was on notice that the sanctuary no longer complied with the condition attached to the gift.

The trustee sought exoneration from liability pursuant to  s 67.  Trustee Act 1958 (Vic); it had acted honestly, reasonably and ought fairly to be excused. 

The Court considered that after about seven years of the ten-year period, the trustee was placed on notice that there may have been a breach of the terms of the gift and ought to have ceased distributions. 

A more onerous burden is placed upon professional trustee companies to satisfy the Court that it is entitled to relief; therefore although it was not intentional, negligent, or dishonest the trustee should have sought judicial advice as to how the trust funds ought to be administered.

The Court concluded that the trustee ought to be excused from liability for distributions made in breach of trust before it was put on notice, but not afterwards. The Attorney-General, as protector of charities, should decide whether to pursue a claim for breach of trust against the trustee to recover losses and interest for the period when it was not excused from liability.

The Court found the distributions were made in breach of the trust ordering that the trustee pay to make good the loss caused by the breach and put the trust in the same position as if the breach had not been committed.

Promissory Estoppel & Washing Unclean Hands

Promissory Estoppel is an equitable remedy that operates where a person has acted in reliance of a promise made. Where the promisor induces the promisee to believe that certain contractual rights within their contracts will not be enforced and the promisee changes their position in reliance on that promise, the promissor will not be allowed to enforce those rights.

One equitable maxim is that one who comes to equity must come with clean hands (alternatively, equity will not permit a party to profit by their wrong doing). If you seek an equitable remedy but have acted wrongly, then you do not have clean hands and you may not receive the remedy you seek.

In May 2009, Alf and Marilyn Plath consulted a solicitor, about transferring their house at Turkey Beach, for $315,000 to their son Ira. The contract acknowledged that a deposit of $15,000 had been received and the balance of the price to be paid, with interest, by yearly instalments of $30,000. The first instalment was to be paid a year from the completion of the contract, which was 1 June 2009. Ira also executed a mortgage in favour of his parents to secure this debt.

On 26 May 2009, the house was transferred to Ira and the mortgage was registered; Ira had never owned a house and became entitled to and with the solicitors’ assistance successfully applied for a first home owner grant, under the First Home Owner Grant Act 2000 (Qld).

Marilyn died in September 2010, and her property passed to Alf, who died in  June 2011. They were survived by seven children and named their daughters Alexis and Cheyenne Plath as executors (“legal personal representatives”) of their estate. In 2017, the legal personal representatives commenced proceedings in the District Court, claiming payment from Ira of the sum of $300,000 plus interest at the agreed rate, and recovery of the house.

Ira submitted that his parents told him out of gratitude for everything which he had done for them he would not have to pay any of the secured amount of $300,000 and that after 12 months he would be released from the mortgage debt. He relied upon his parents wanting to give the property to him, and acting in reliance on his parents representations, went ahead with the transaction; therefore his parents, and the personal representatives of his father’s estate, were estopped from enforcing the mortgage against him.

In the alternative, Ira claimed, calculated on a restitutionary basis, the reasonable value of the services which he said he provided to his parents, which he valued in a sum in excess of $800,000.

The District Court concluded that there was no basis for an estoppel, the documents were intended to have effect according to their terms and held the contract and mortgage enforceable.

On appeal, the Supreme Court accepted and it was sufficiently established that Ira signed these documents with the expectation, created by his parents, that he would never be required to perform the obligations within them. Alf, Marilyn and the respondents, as their successors, were estopped from enforcing the terms of the contract and the mortgage.

It is often stated that in order to enliven a claim for equitable relief, a party must come to equity with clean hands. In the ordinary course, this doctrine requires that there be a connection between the plaintiff’s unclean act and the rights he or she wishes to enforce. Ira’s actions in claiming the first home owners grant raises the question of whether a party which obtains a wrongly obtained grant merits equitable relief.

The Supreme Court accepted that equitable relief was conditional upon Ira repaying the grant in order that the appellant’s unclean hands may be “washed”. Ira undertook to repay to the State of Queensland the first home owners’ grant paid to him with any interest and penalty owed.

Dowager Lucan’s entire estate left to the homeless

In November 1974 Richard Bingham, 7th Earl of Lucan commonly known as Lord Lucan, vanished after his children’s nanny Sandra Rivett, was found bludgeoned to death, and his ex-wife was severely beaten with a lead pipe.

Lord Lucan’s car was later found abandoned and bloodstained in Newhaven, East Sussex. An inquest found that Lord Lucan killed Sandra after mistaking her for his wife.

Following school Lord Lucan was a second lieutenant in the Coldstream Guards, before becoming a merchant banker. Although a reasonably successful gambler as a young man he was less so when he left banking to become a professional gambler and was Bankrupt when he disappeared.

A report to creditors in August 1975 stated his unsecured debts at £45,000 and liabilities of £1,326. His assets were estimated at £22,632. In order to discharge his debts, the family silver was sold and the balance was repaid from proceeds from the Lucan family trust.

Custody of the children was transferred to Veronica’s sister and brother-in-law following her diagnosis with mental illness; she hadn’t spoken to her children in more than 35 years and had never met her grandchildren.

The Presumption of Death Act 2013 was passed allowing an application to the High Court to declare that a person is presumed dead. Death is taken to occur on

(a) the last day that they could have been alive (if the court is satisfied that they are dead), or

(b) the day seven years after the date they were last seen (if death is presumed by the elapse of time).

As the 7th Earl of Lucan was last seen alive in 1974 (notwithstanding numerous alleged sightings since that time) the Court issued a death certificate enabling his son George to assume the family title as the 8th Earl of Lucan

Veronica, who formally became the Dowager Countess after the death certificate was issued for her husband, died from an overdose following an incorrect self-diagnosis of Parkinson’s disease.

Veronica left her entire estate of £576,626 to the homeless charity Shelter. Leaving her estranged children George, 8th Earl of Lucan, his sisters, Lady Camilla Bloch, QC, and Lady Frances Bingham out of her Will on account of having

”the lack of good manners and reverence shown to me as their parent, I do not wish any of my three children to benefit from my death any more than they have to”

It was reported that George applauded his mother’s decision to provide a legacy to” a fantastic and worthwhile charity” adding that the property in which she lived was made available to her rent-free for the latter part of her life under an arrangement ”put in place by my sisters and I” with the family trust and was not part of her personal estate.

Intention that a document is to be a Will

A testator must, at the time of signing, have had an intention to put
into effect a document that comes within the definition of a will. This intention can be expressed in the document, by the commencing words:

”This is the last will and testament …”;

or implied by the form of the document. Oral evidence is admissible to prove testamentary intention.

The definition in Sch 1 of the Acts Interpretation Act 1954 (Qld) provides that “document” includes:

(a) any paper or other material on which there is writing; and

(b) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and

(c) any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).

The following events took place in a hospital room in a private hospital at the Gold Coast. The testator was a Chinese National with substantial investments in Queensland who spoke and understood little English. He was being supported through the last stages of his illness by a nephew who was present during the events. The testator’s executor Doris Choi had been involved in his business affairs for some time.

Due to the testator’s bad health the will was executed in urgent circumstances wIth the intention that it be a temporary will pending preparation and execution of a more complete document As it turned out, the testator’s condition deteriorated rapidly and he did not execute any further will.

Doris engaged a solicitor, to assist in the preparation of the will who had regularly undertaken legal work for the testator’s businesses but was not an estate lawyer. It is important to note that the testator did not understand what passed between Doris and the solicitor. The testator’s appreciation of events, for the purpose of assessing his awareness and approval of the contents of the will, depended on what passed between him and Doris .

The solicitor advised Doris that the testator needed to name beneficiaries and specify the proportions of the estate for each beneficiary. The nephew sent Doris a video clip of the testator specifying his two daughters and two sisters as beneficiaries. Following this Doris sent an electronic message to the testator enquiring whether his estate was to be distributed equally before receiving a response Doris sent details of the proposed beneficiaries to the solicitor following this the testator replied to her request (about equal distribution) stating that he hoped everyone would agree.

Although, there was no evidence that the testator had any appreciation of Chinese law on the subject the Court of appeal had consulted the Law of Succession of the People’s Republic of China as in that jurisdiction the time and mode for partitioning the estate shall be decided through consultation by and among the successors in the spirit of mutual understanding and mutual accommodation.

Later that day, Doris and the solicitor met with the nephew and the second witness attended the testator in his hospital room. While drafting the will on her personal computer, the solicitor asked Doris whether the testator had decided the distribution proportions. Doris responded that the testator hoped everyone would agree but had received no further information.

As a result of this conversation, the solicitor prepared the draft will providing expressly that the distribution to the beneficiaries would be made equally, although the clause was set out in a way that would readily enable amendment to insert differential proportions.

Shortly after Doris and the solicitor arrived, the testator without further explanation asked for the will took the document and signed it. He then wrote in Chinese characters confirming that his assets were to be given to four beneficiaries although he was “not yet decided” on the proportions. Following her explanation of the operation of the express provision of the will as to equal distribution and a short discussion among those present Doris asked the testator in Mandarin:

“What do you want to write? Equally distributed among four people.”

The testator replied:

”No, not equally – not equally distributed” .

Doris told the solicitor that the testator wanted to cross out equally; then said to the testator in Mandarin

“So we will delete the word”

and told him to initial the change, which he did after the word equally had been crossed out. Following that, the witnesses witnessed the will.

The execution of the will complied with the requirements of s 10 of the Succession Act 1981 (Qld). However, the circumstances attending the execution of the will raised a real question as to whether the testator knew and approved of its contents and effect.

Did the testator intend to execute: a will that had the effect of leaving his estate to the four named beneficiaries equally, or on the footing that the distribution was not to be equal and that he had not made up his mind as to what their shares would be.

At first instance, the Court found that at no stage before or after the testator signed the deletion did Ms Choi seek confirmation from the testator that he understood that the deletion would have no impact on the assets being distributed equally between the four beneficiaries contrary to his express wishes.

Further, if the testator understood Doris’s statement that the distribution would be equal, absent an allocation of proportions, there was no rational basis on which the testator would have required the word “equally” to be crossed out.

Significantly the testator was not asked, at the time Doris gave her explanations to confirm that he understood them in particular, whether he understood and was not advised that crossing out the word “equally” would still result in an equal distribution of assets between the beneficiaries.

The appellant’s argument was whether the will should be admitted under s 18 of the Act. Section 18 outlines the circumstances when the court may dispense with execution requirements for a will, alteration or revocation of a will.

On appeal, the sole question for determination is whether that finding, made by inference, was incorrect. The draft will executed by the testator was written in English; the testator did not understand written English. The Solicitor did not speak Mandarin and did not understand the conversation between Ms Choi and the testator. Ms Choi and the Solicitor spoke to one another in English, and the testator did not understand the conversation between them. The nephew spoke both Mandarin and English. The language capabilities of the other witness were not established.

The Court found on the part of the primary judge in reaching the conclusion that the deceased did not understand or approve of the document providing for an equal distribution to the beneficiaries as his last will.

Crisp Order

A Crisp order is a Court Order that provides an applicant with a portable life interest in particular items of estate property; allowing the applicant to use the value of specific estate assets to secure appropriate accommodation and to meet their ongoing maintenance needs.

”… such an order gives a plaintiff an interest for life in real property or in an interest in the property, with the right to it (should the need arise) for the purposes of securing, for the plaintiff’s benefit, more appropriate accommodation… intended to provide flexibility, by way of a life estate, the terms of which could be changed to “cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital”

Ken Kui Yuen Lau (“Ken”) died in March 2018 at the age of 81. Man Ling Ng (“Mary”) is 74 years old and is Ken’s widow from his second marriage. In addition to Mary, Ken was survived by his only child from his first marriage, Gary Pui Kuen Lau (“Gary”), he is 45 years old and the only other beneficiary of Ken’s estate (the “Estate”).

Ken married his first wife, Grace, in 1972. Their son Gary, was born in 1974. Grace died in 1998.

Gary lived with Ken in the family home (”the Peakhurst property”) until he married in 2000 and bought his own home with financial assistance from his father.

Ken married Mary in September 2001 and they remained married at the time of his death in March 2018. Mary’s marriage to Ken was her first; she has no children.

Shortly after they married, Ken purchased and the couple moved into the Bexley Property. Although Mary continued to work as a registered nurse, she reduced her hours over the years at Ken’s request.

The 2001 Will

Six weeks after Ken married Mary he executed the 2001 Will at his solicitor’s office; at the same time, Mary made a will.

Ken appointed Mary as his executor, left the Peakhurst Property to Gary and gave the residue of his estate to Mary.

In 2012 Ken was diagnosed with bladder cancer; Mary gave up work to care for him. In 2014, Ken was diagnosed with prostate cancer and was in and out of the hospital for the last few years of his life. Ken’s health deteriorated to the point that in 2017 he was bedridden with Mary providing care for him at home in the Bexley Property until his last hospital admission in March 2018.

During the course of their relationship, Mary contributed to their costs of food, entertainment and holidays. Although, in the last months of his life, Ken transferred a total of $110,000 to Mary the Court accepted that Mary and Ken maintained largely separate finances and assets.

The 2016 Will

In November 2016 Ken had a solicitor draw up a Will (”the 2016 Will”) appointing Mary and Gary as joint executors and trustees; leaving the Peakhurst Property to Gary; a life estate in the Bexley Property to Mary, with Gary as remainderman; and the residue of his Estate to Mary and Gary equally.

The Court had to determine probate between the two wills and a family provision claim pursuant to the Succession Act 2006 (NSW) with alternate claims brought by both Mary and Gary depending on the Will the Court admitted to probate.

The Court determined that the 2016 Will should be admitted to probate as there were no demonstrated suspicious circumstances to suggest that Ken did not know and approve the contents of the 2016 Will, or that the 2016 Will did not truly reflect his testamentary intentions.

Family provision claim

Mary submitted that her present financial circumstances and needs warranted further provision out of the Estate.

Since retiring in 2012, Mary relied on a super fund pension and rental income from a property she purchased in Eastwood, NSW (the “Eastwood Property”). Mary holds the Eastwood Property unencumbered and in her name alone. After Ken’s death, Mary commenced receiving his Comsuper pension of $743 per fortnight.

The Court found that the 2016 Will does not make adequate provision for Mary’s proper maintenance and advancement in life as it gave her only a life estate in the Bexley Property.

Having regard to all the circumstances of the case at the time of the hearing, the Court held that a life estate fails to address the reality that Mary will need to move from the Bexley Property within a few years to more suitable accommodation due to her age.

The Court wasn’t satisfied that the life estate gave Mary the flexibility of choice as to her future accommodation; this would properly be achieved by way of a Crisp order, made in favour of Mary in relation to the Bexley Property.

The Court accepted Gary’s submission that a Crisp order provides the flexibility enabling Mary to continue to reside in the Bexley Property for as long as she desires or is able, with the security to deal with her accommodation as she ages – on condition Gary resigns as co-executor – and additional provision of $45,000 ought to be made for Mary’s maintenance or advancement in life. However, as Mary has adequate income from the Eastwood Property and Ken’s Comsuper pension, to meet rates, insurance and subsequent maintenance costs for the Bexley Property.

A Crisp order is preferred by the Court because it provides the least alteration to Ken’s testamentary intentions. On Mary’s death, Gary will obtain the remaining capital benefit of what is currently the Bexley Property.

Lord Templeman and the Golden Rule

Sydney William Templeman was a British judge. Born in March 1920, the son of a coal merchant, in 1970 Lord Templeman became Attorney General of the Duchy of Lancaster before being appointed a High Court judge, Chancery Division in 1972 followed by promotion to the Court of Appeal in 1978, becoming a Law Lord in 1982.

Lord Templeman had two sons, Peter and Michael, with his first wife, Margaret. Following Margaret’s death Lord Templeman married Sheila Edworthy in 1996.

Sheila had one son, Bruce, from her first marriage and two daughters with her second husband, John: Jane and Sarah. Sheila and John built a house known as Mellowstone, in Exeter; John died in 1995. When Lord Templeman married Sheila he moved to Exeter to live in Mellowstone and lived there until he died in 2014.

Under the 2001 Will and 2004 codicil, if Sheila predeceased him and left Mellowstone to him under her will, Lord Templeman left £20,000 free of tax to each of his six grandchildren and £120,000 free of tax to Sheila’s residuary beneficiaries. Any greater value of Mellowstone would fall into his residuary estate, which was to be shared by his two sons, Peter and Michael.

Sheila died in June 2008, two months before the 2008 will was made, and Mellowstone was left to Lord Templeman by her last will. In the 2008 will, Lord Templeman left Mellowstone to Jane and Sarah. He left no legacies to his grandchildren or Sheila’s residuary beneficiaries and, after some modest gifts, the entire residue of his estate was left to Peter and Michael in equal shares.

Lord Templeman expressed the ‘Golden Rule’ concerning mental capacity in the case of Kenward v Adams [1975] CLY 359:

“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however, straightforward matters may appear, and however difficult or tactless it may be to suggest the precautions be taken; the making of a will by such a testator ought to be witnessed or approved by a medical ….practitioner who satisfies himself of the capacity and understanding of the testator, and…records and preserves his examination and finding”.

It has been held that the golden rule is a rule of solicitors’ good practice, having the potential to reduce the risk of a claim of lack of testamentary capacity and should, therefore, be offered to testators as an additional precaution even if not observed.

At the time of making his own will in 2008, Lord Templeman was 88 years old and suffering from mild dementia and short-term memory loss. Despite this, no medical practitioner assessed Lord Templeman’s capacity. Lord Templeman’s son and daughter-in-law sought to challenge the validity of the will for lack of testamentary capacity.

The Claimants contended that there was no rational explanation for the change that Lord Templeman made in his 2008 will. The issue to be decided was whether Lord Templeman had testamentary capacity when he executed the will before a solicitor and another witness in August 2008. The effect of invalidity of the 2008 will would be that Lord Templeman’s final will was one that he made in 2001, subject to a codicil of 2004.

The defendants contend that there was, is and can be no rational explanation for the change that Lord Templeman made in his 2008 will as regards Mellowstone. The explanation that he was acting under an illusory belief that he had not provided in his will for the eventuality that he inherited Mellowstone from Sheila. That illusory belief provided a false premise for the 2008 will and therefore he lacked testamentary capacity.

The law relating to testamentary capacity is as set out in Banks v Goodfellow (1869) LR 5 QB 549, paraphrased in more modern language in Burns v Burns [2016] EWCA Civ 37, as follows:

“[33] … the testator must:
(a) Understand that he is giving his property to one or more objects of his regard;
(b) Understand and recollect the extent of his property;
(c) Understand the nature and extent of the claims upon him, both of those whom he is including in his will and those whom he is excluding from his will;
(d) Ensure that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it, which, if the mind had been sound, would not have been made.”

The Court believed that the basis of a challenge to the validity of the 2008 Will was narrow; as the Will was rational on its face and duly executed; Lord Templeman sufficiently understood the act of making a will and its effect, and sufficiently understood the extent of the property of which he was disposing. It is not in dispute that he knew and approved of the contents of the will.

Although Lord Templeman was never diagnosed with or treated for this disease during his lifetime he started to experience early symptoms of dementia attributable to incipient Alzheimer’s disease in 2006. Apart from a short stay in hospital in early 2014, he continued to live in Mellowstone for the rest of his life, supported to an increasing extent by Jane and her husband, John, by Sarah and her partner Mike, and by professional nursing support only in 2014.


Lord Templeman’s working memory gave him no difficulty. He was able to capture and use information, converse and be witty and observant, however, he would commonly forget what had been said earlier in a conversation or repeat himself.

The Court found “no cogent evidence to suggest that Lord Templeman’s mental functioning was impaired in 2008 to any significant degree”. he was aware of his 2001 will and 2004 codicil as they were made before the onset of any impairment so he would likely have remembered them, and the documents were easily found in his study and therefore would have considered them before seeing his solicitor to discuss and execute the 2008 will.

Lord Templeman had become very attached to Shelia, Jane and Sarah in the years preceding his death. Moreover, all the evidence suggested that Lord Templeman was at all times a strong and decisive person and when he made his new Will, he was not unduly hampered by his difficulty with short-term memory loss.
It was argued that if Lord Templeman had a functioning memory then he would have heeded his own golden rule. The Court held that while observing that medical assessment should have occurred to avoid such dispute, his lordship’s failure to do so was instead evidence

“of the commonplace that people who are able dispassionately to give good advice to others do not always follow such advice themselves”

Given Lord Templeman’s reputation, and even at his age his evident intellectual resources and the perfectly rational terms of the new will on the face of it, the Court was not surprised(the Golden Rule notwithstanding) that his solicitor decided not to enquire further or suggest that he be medically assessed.

The Court dismissed that Lord Templeman was subject to a delusion, or illusory belief, which undermined his ability justly to decide., holding that even a simple mistake, which was attributable to his poor memory fell

“far short of the kind of “delusion” needed to negative testamentary capacity”.

Lord Templeman was held to have had testamentary capacity as he was able to comprehend and appreciate the claims to which he ought to give effect, was not suffering from a delusion that poisoned his mind. Accordingly, the 2008 will was admitted to probate.

Celeste Barber and the Charitable Trust

Over the spring and summer of 2019 – 2020, Australia suffered a series of catastrophic bushfires. Millions of hectares of bushland and agricultural land were burned out. Thousands of homes and properties were destroyed. Countless animals were killed or injured.

Thirty-three people throughout Australia were killed including fourteen firefighters; twenty-five people were killed in New South Wales including six members of the NSW Rural Fire Service. Many others sustained physical and psychological injuries.

In New South Wales firefighting was organised under the command of the NSW Rural Fire Service, a body constituted under the Rural Fires Act 1997.

Fundraising

Celeste Barber responded to this unfolding crisis by launching a charitable crowdfunding appeal (“the appeal”) in early January 2020 entitled:

“Please help any way you can. This is terrifying.”

Celeste nominated, and PayPal published, the NSW Rural Fire Service & Brigades Donations Fund (“the RFS Fund”), as the proposed recipient of the appeal donations. The RFS Fund is an express charitable trust and a charity within the meaning of s5 of the Charities Act. It is a registered charitable trust with the Australian Charities and Not-for-profits Commission. The appeal raised $51 million. PayPal remitted this money to the RFS Fund.

Charitable Trust

A charitable trust is created when an initial sum of money is transferred to a trustee, who manages it and the income from this investment is then distributed to charitable organisations for the advancement of the “charitable purposes” specified in the trust instrument.

Courts now generally accept that charitable trusts fall into one of the following, for the:

• relief of poverty;

• advancement of religion

• advancement of education

• or other purposes beneficial to the community

A charitable trust is administered by the trustees, whose powers are conferred by the trust instrument, legislation and the Court. In NSW, the relevant legislation is the Trustee Act 1925 (”the Act”) and the Charitable Trusts Act 1993.

The RFS Fund

The trustees of the RFS Fund, (“the trustees”) constituted by a trust deed of 10 April 2012 (“the Deed”) sought the Court’s advice or direction under s 63 of the Act as to the proper interpretation of the RFS Trust Deed.

The Deed established the RFS Fund. Recital B of the Deed records that the RFS Fund

“will be established and operated solely for the purpose of supporting the volunteer-based fire and emergency services activities of the Brigades”.

Clause 1.1 defines “Brigades” as

“all brigades establish from time to time under the Rural Fires Act 1997 (NSW) as amended.”

Clauses 2.1 and 2.2, of the Deed, establish and name the RFS Trust. Clause 2.3 sets out the purposes of the RFS Fund. This clause is the central provision to be construed by the Court.

The Court proceedings

Section 63 of the Act empowers the Court to advise trustees

“on any question respecting the management or administration of the trust property or respecting the interpretation of the trust instrument”.

The trustees wish to honour the intentions and beliefs of Celeste and the donors who responded to the appeal concerning what should be done with the donated money. But they wish to do so consistently with the Deed and following applicable law.

If a trustee acts on the Court’s “opinion, advice or direction’ under s 63 of the Act the trustee is

“deemed to have discharged the trustee’s duty as trustee in the subject matter of the application”.

Therefore, provided a trustee’s application is not misleading and the trustee acts following the Court’s advice, the trustee is protected from a complaint.

The advice the Court gives is private advice to the trustee. But unless there is a special reason for confidentiality, in the proper administration of justice, the advice is given in open court. In proceedings under s63 of the Act, a trustee asks the Court questions, which the Court then answers.

The trustees raise four questions with the Court about the interpretation of the RFS Trust Deed. whether, they are justified, in the proper performance of their powers and duties as the trustees, in applying the monies in the RFS Fund to any of the following four possible objects:

1. paying money to other charities or rural fire services, whether in New South Wales or other Australian states or territories, to assist in providing relief to persons and animals affected by bushfires;

2. setting up or contributing to a fund to support rural firefighters injured while firefighting, or the families of rural firefighters killed while firefighting;

3. providing:

a) physical health training and resources,

b) mental health training and resources, or

c) trauma counselling services,

d) to volunteer firefighters (as defined in Rural Fires Act, s 8), who require them in connection with performing the functions of the New South Wales Rural Fire Service, as defined by Rural Fires Act, s 9; or

4. setting up or contributing to a fund to meet the costs for volunteer rural firefighters, as defined in Rural Fires Act, s 8, to attend and complete courses that improve skills related to the volunteer-based fire and emergency services activities of the brigades, established under the Rural Fires Act.

The Crown, as parens patriae, must protect all property committed to charitable purposes. The Attorney General of New South Wales joined as a defendant in these proceedings on behalf of the Crown, fulfilling its usual role to represent the object of a charity.

The Court after taking account of the facts presented including greater detail about the appeal and the structure of the crowdfunding payment mechanism used; followed by the terms of the RFS Trust Deed and the legislative context relevant to the Court’s consideration of the terms of the RFS Trust Deed. The Court advises trustees of the RFS Fund that they:

1. Cannot use the donated money to give to other charities, or to donate interstate, or to help people or animals affected by bushfires.

2. Can set up or contribute to a fund to support rural firefighters injured while firefighting or the families of rural firefighters killed while firefighting.

3. Can make payments from the RFS Fund to provide volunteer firefighters with a fund from which physical and mental health training can be provided, together with trauma counselling services.

4. Can set up or contribute to a fund to meet the costs for volunteer rural firefighters to attend and complete courses that improve their skills related to the volunteer-based fire and emergency services activities of the brigades.

Despite the trustees’ wish to honour those donors’ intentions, hopes or both that the money they donated would be used for purposes beyond those which the Court has advised, the Court has applied the principles provided by the Act that ensure a degree of certainty in the application of trusts including charitable trusts.

Family Provision claim by a close friend of an Intestate

Horst Marszalek died intestate in February 2018 aged 79 years. Horst had never married and had no children. His parents were dead and his closest surviving relatives were his brother, Reiner, who died in August 2018, and his nieces Ingeborg and Petra.

Horst’s intestate estate would be distributed, 25% each to Ingeborg and Petra, and 50% to the estate of Reiner. However, at the time of his death, Horst was living with, his close friend for over 30 years George Rakovich who sought a family provision order under Chapter 3 of the Succession Act 2006 (NSW) (the Act).

As Horst died intestate George is not entitled to receive any share of his estate.

A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Proper provision means not only provision from the estate that alleviates poverty, but also takes into account the vicissitudes of life.

George worked full time and provided Horst with $100 per week for shared living expenses; performed odd jobs and shared some of the cooking and assisted Horst with some other jobs around the house. At specific moments of personal crisis in each other’s lives, George and Horst provided support to one another.

George had never been married, although he was in a long time de facto relationship with Carole Millar which ended in about 1993. There were two children of this relationship: a son Ben, who was born in November 1987, and daughter Jamie, who was born in May 1986.

George lived with Horst from the beginning of 2012 until his death in February 2018. He continued to live in the property until November 2019. Although he did not pay any rent, or occupation fee, to the estate, he had maintained the home and carried out any maintenance and repairs that had been required. He also paid the water rates.

The Court agreed that George was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member within s 57(1)(e) of the Act.

Reiners widow Helga the sole beneficiary of Reiner’s estate died in August 2019, after the commencement Court proceedings. The beneficiaries of Helga’s estate were her two sons, Ralf and Frank.

Helga’s estate comprised, in part, the estate of Reiner, which includes a half share of Horst’s estate.

Helga and Reiner visited Horst in Australia in 1990, in 1993, and for the last time, in 1996 corresponding by telephone, and by letter, about once a month and on special occasions.

Frank Ralf Petra and Ingeborg never met Horst although they spoke on the telephone or kept in contact with him via their parents.

In applying s60(2) of the Act the Court was satisfied that George was a good friend of Horst, and displayed close, paternal feelings for and felt a deep sense of grief following Hort’s death. Whilst there was no intimate or sexual relationship between them they had known each other for many years and had shared a house since 2012.

At the time of the hearing, George was living with his daughter, her husband and their three children, and due to his poor health was not able to continue with his work as a Site Supervisor.

George’s financial circumstances are unlikely to improve at his age, with his medical condition; significantly, he had placed the cash sum of $165,000 into a bank account in his son Ben’s name. Ben without his father’s knowledge, or consent, had spent all of the money on drugs and gambling. Ben has promised to repay the amount taken, but the Court raised concerns whether that promise will be realised.

The Court found that George is an eligible person, that the claim for family proceedings was commenced within time, and that the provision made for him pursuant to the operation of the rules of intestacy is inadequate for his proper maintenance or advancement in life, awarding him a lump sum equating to 45 per cent of the net estate that which will enable him to purchase accommodation in which to live, a modest amount for requirements of life.

55 per cent of the net value of the estate to be divided between the nephews and nieces of the deceased, with each receiving 13.75 per cent, providing each with a reasonable capital sum for their life’s requirements.

Statutory Will – Nil Capacity

The Supreme Court may act on behalf of a person who lacks testamentary capacity in a situation where if a Statutory Will is not made, their estate will pass according to the laws of intestacy, which might not be appropriate in that particular case. The Court needs to be satisfied that

‘the proposed will … is or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity’.


The applicant for a Statutory Will must supply the Court with information about the lack of testamentary capacity of the person. Details of the person’s financial position; who would inherit the person’s estate if they died without a Will and provide a copy of the proposed Will and/or Codicil to the Court.


The Court also must be satisfied that the Applicant is an appropriate person to make the Application; and why the proposed Will and/or Codicil is a Will or Codicil that the person would make if they had capacity to do so.


“The making of a statutory will provides no guarantee that a family provision application will not be made after the death of the notional will-maker but, in practice, it may have a distinct tendency in that direction, especially if the “will” made is the subject of acquiescence on the part of the will-maker’s family and social circle”.

The Estate of the person for whom the application is being made will pay the costs of the application in most instances.

In November 1997, Charles, aged four months, was admitted to hospital with severe head injuries. He was in a critical condition and was placed on life support. The treating physicians were of the opinion that the injuries were deliberately inflicted and were consistent with “Shaken Baby Syndrome”.

The parents did not provide any explanation to the Police as to how Charles came to be injured. They have, however, consistently denied that they injured him. The parents have never been charged with causing Charles’ injuries. However, the surrounding circumstances raise suspicion against them. In 1998 the Children’s Court ordered that Charles be removed from the parents’ care, and parental care was allocated to the Minister for Community Services.

In November 2000, the Victim Compensation Tribunal awarded Charles compensation to be held on trust for him by the Public Trustee until he reaches the age of eighteen years. However, Charles’ life expectancy is diminished because of his immobility and the increasing risk of lower respiratory infections.

The medical evidence shows that Charles disabilities are permanent, and he will never have testamentary capacity. The Minister sought an order for a statutory will for Charles.

If Charles were to die intestate, then due to state law his estate would go to his parents in equal shares. The Minister believes that the parents should not benefit from Charles’ intestacy and that Charles’ whole estate should go to his sister, who is some two years older than Charles. If she predeceases Charles, the Minister proposed that the estate be divided equally between two charities which care for disabled children such as Charles, namely the Sydney Children’s Hospital Foundation and the Spastic Centre.

The Court held that this is a nil capacity case as Charles has never had, and never will have testamentary capacity. The parents had no objection to the proposed statutory will and did not wish to be represented during the proceedings.

The Court was satisfied that not only was it reasonably likely but it is highly probable that a reasonable person faced with Charles’ circumstances would give the whole of the estate to Charles’ sister, and if she predeceased him would choose to provide in his will for a gift to the Sydney Children’s Hospital Foundation and the Spastic Centre.

Statutory Will – Pre-empted capacity

A is fourteen years old and lacks testamentary capacity. He was born with a rare congenital brain malformation treatment for which is the insertion of a cerebral shunt to drain fluid from the brain. At around two years’ of age, there was a malfunction with the shunt which led to A suffering a severe brain injury.

As a result of a medical negligence claim A was awarded substantial compensation; the value of A’s trust fund was $3,711,912.54 in September 2019. The trust includes a residential property (“the Property”) valued at $526,000, which was purchased in early 2011 in A’s name with the approval of the trustee for the purpose of being modified to meet his special needs.

A’s father OR had been violent and abusive towards A’s mother (on one occasion in the front of A, causing him stress); had been found guilty of crimes and sentenced to imprisonment.

OR had moved into the property preventing it being used as a home for A, notwithstanding that it had been modified to accommodate A’s special needs. Consequently, A’s mother and her children were required to continue to live in inappropriate public housing, which often caused A distress.

A has two siblings, a nine-year-old and an 8-year-old brother. A’s mother died on 3 May 2019 as a consequence of metastatic oesophageal cancer. Consequently, OR is A’s only surviving parent.

On 26 July 2019, the Children’s Court of New South Wales made orders that all aspects of parental responsibility for A and his two siblings are allocated to the Minister for Communities and Justice until further order.

The Secretary of the Minister’s Department made an urgent application for a ‘statutory will’ for A due to the deterioration in his health proposing that A’s siblings be named as his sole beneficiaries, excluding OR who would inherit if A died intestate.

To make an order under s18 of the Succession Act the Court must be satisfied that:

(a) there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a will, and

(b) the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity, and

(c) it is or may be appropriate for the order to be made, and

(d) the applicant for leave is an appropriate person to make the application, and

(e) adequate steps have been taken to allow representation, as the Court considers appropriate, of persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought.

The Secretary relied upon an affidavit made by A’s mother in December 2018, in Family Court proceedings in support of an application for a parenting order designed to ensure that, after her impending death, the three children were cared for by someone other than OR.

In an affidavit A’s mother deposed that she had always been the carer for A and the other two children, that OR never supported A, and had indicated to her that if she could no longer care for A, OR would place A in respite care.

Due to its urgent nature OR was not notified of the application and was not served; as a consequence, he was not given ‘an opportunity to appear’

If the Court had refused to deal with the application and AR had died before OR could be found and given proper notice of the application, the opportunity for the Court to apply this beneficial legislation would have been lost.

The Court was satisfied that (had he been capable of considering the matter) A would have wanted to bestow a substantial testamentary benefit on his siblings, even though it is less clear that he would have excluded his father completely.

Despite these misgivings, the Court made the orders sought; observing that due to the urgency OR was absent from the hearing, and may have a right to apply for an order setting aside or varying the orders that have been made.