This week the Attorney General of New south Wales came to a decision regarding a gift in the Will of Euphemia (“Mia”) Polykarpou, which I discussed late last year.
Those of you who follow my posts will understand that I agree with the Attorney General who stated that in order that your estate is protected and distributed as you wish “a clear, legally valid and up-to-date will” is required. Importantly a Will should be reviewed regularly.
To recap Mia died on 2 March 2015, leaving an estate with an estimated value of about $1.4 million. She had made a Will in March 2004, probate of which was granted to her executor in October 2015
Mia left her entire estate to charitable causes; half went to scientific research into the causes and cures for Multiple Sclerosis with the other half specifically gifted to Oprah’s Angel Network, (“OAN”) a charity founded and managed by Oprah Winfrey.
OAN focused its donations promoting the education and advancement of women with projects including provision of education supplies, school construction, and disaster relief from 1998 to 2010. In May 2010 the charity stopped accepting donations and was shut down.
When Mia created her Will in 2004, OAN was operating as a charity. However by the time of her death OAN had ceased operation; the gift failed as no organisation existed that could accept it.
Where a specific gift within a Will fails, and there is no provision in the Will for dealing with the residue of the estate, that portion of the Will is treated as if it did not exist, and would be distributed as if the deceased died “intestate”.
In most jurisdictions where a specific gift fails the court can step in and establish a cy près scheme by which a failed gift is constituted a valid charitable trust, and is distributed to an alternate charitable beneficiary that is as closely aligned to the deceased’s intentions as possible.
Cy-pres is a doctrine which is applied when the strict terms of a will cannot be carried out and is subject to certain conditions; the testator must exhibit in their will a general charitable intention.
there must be impracticability in the fulfillment of the charitable intention of the testator.
the condition of the gift that causes the impracticability must not be an essential term of the bequest.
The Court taking into consideration that the entirety of the Estate was gifted to charity and that the failed gift was to a charitable institution ruled that the intent of the deceased in her Will was charitable in nature. The Court then ordered that a cy-pres scheme be established to distribute the gift to a similar charitable interest
The Court referred the gift to the Attorney General who represents the Crown as the protector of charities “identifying the primary charitable purpose of the gift as being for the betterment, support and enrichment of women and children in need or for educational purposes”.
There were two applications to the Attorney General with proposals for the use of the trust funds of $609,127.66.
Oprah Winfrey Leadership Academy Foundation (“OWLAF”) is a not for profit organisation incorporated in Illinois United States. The Oprah Winfrey Leadership Academy was founded by Oprah Winfrey in South Africa to provide an independent residential boarding secondary school for disadvantaged girls.
The Young Women’s Christian Association of NSW (“YWCA”) proposes to apply the trust funds to benefit women and children requiring post crisis domestic violence services in South Western Sydney.
The Attorney General felt that the OWLAF scheme would primarily benefit young women in South Africa predominantly students attending the Academy and its graduates as such OWLAF’s focus is narrower than the primary charitable purpose stated in the Will.
In considering the merits of OWLAF versus the YWCA the Attorney General ruled the YWCA better met the primary charitable purpose of the gift and ordered that the money will now be spent establishing and funding a post-crisis domestic violence centre in Campbelltown which provides services to women and children.
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