Negating the dead hand of the past

In an earlier post we discussed that Wills are not instruments  for the Will maker to control the  lives of future generations. In adopting a perpetuity period of life or lives in being plus 21 years from the date of creation of the interest Courts have been able to limit the control over property into the future.

Monica Farrelly, died in June 2012 aged 98 years, with an estate valued at over $7 million. Monica never married and had no children. Her last will was made in April 2003; probate of the will was granted to Vikki Phillips, an executor named in the will.

Monica’s Mother, Father and only sibling, Mary had died before her. Mary was widowed and died in 1993, she had no children. Monica’s Mother and Father had 17 siblings between them; Many of her Aunts and Uncles had children, therefore her extended family consisted of over 55 people.

As part of her Will Monica left:

“the sum of TWO HUNDRED THOUSAND DOLLARS ($200,000.00) to be invested by my trustees for the purpose of applying both the capital and income at the discretion of my trustees for the up keep and maintenance of the family graves at Pinkerton Plains”

The executor was doubtful that the clause leaving money for the upkeep of the graves was valid; as it may be void as a non-charitable purpose trust.

To be a valid charitable trust, the organisation must demonstrate both a charitable purpose and a public benefit. Applicable charitable purposes include; the relief of poverty,  the promotion of education, importantly the trust’s purposes must benefit the public (or some section of the public), and not simply a group of private individuals.

The clause in the Will was for the provision for “the up keep and maintenance of the family graves at Pinkerton Plains”, rather than broadly for the upkeep of the cemetery as a whole. The Court’s view was that, the clause could not be considered to create a charitable purpose trust, as there is no public benefit.

The upkeep of graves constitutes a perpetual memorial, consequently the gift for the purposes of the erection of graves, and the perpetual care of the ground fails. The court held the gift of $200,000 to Monica’s trustees to be applied for the upkeep and maintenance of her families graves at the trustees discretion is void as it creates a perpetual trust as the clause has no limit.

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