Invalid Gift of Family Crypt


Francesco Pacella died on 10 May 2015 having executed his Will (“the Will”) the day before. In August 2015, probate of the Will was granted to his partner, Patricia Fleming, and son, Emidio Pacella; the principal asset of the estate being Francesco’s property in Stephensons Road, Mount Waverley(“the Property”).

Patricia was Francesco’s domestic partner since 1970; is now aged 83 years, has limited means and ability to earn income.

The Will gives Patricia a right of residence in the property until her death or permanent vacation of the property, or if, by mutual agreement, the property is sold. The estate is then further subject to a number of specific bequests, which are only to be paid upon the sale of Stephensons Road, including the sum of $200,000.00

 ‘to my nephew … for the sole purpose of enabling him to construct a family crypt in my name in a cemetery in Italy chosen by my Executors and if my Executors fail to choose a cemetery within 90 days of the sale of such property then such cemetery is to be chosen by my son with such crypt to house 20 coffins”

In most Jurisdictions, applications regarding further provision must be made within 6 months of a grant of probate or letters of administration.  In June 2017, Patricia sought further provision, (out of time by 16 months) from the estate, pursuant to the Administration and Probate Act 1958; the Victorian Supreme Court agreed that the extension application and the provision claim would be heard at the same time. In October 2017, Emidio disputed Patricia’s claim and made a competing claim.

In October 2018, the parties agreed to the sale of the property and for $350,000 of the proceeds of sale to be paid to Emidio in full and final satisfaction of his entitlements pursuant to the Will, the terms of settlement reflects Francesco’s obligation and that the Court must be satisfied, amongst other matters, that the provision is sufficient for Patricia’s proper maintenance and support

The Court was asked to determine the validity of the gift to construct a crypt; where ‘the proposed monument or tomb is to form the fabric of a church, the disposition may be valid as a charitable trust’. However, ‘a trust that has no beneficiaries or does not have a charitable intent is void’ except where

  1. there are no interested beneficiaries to enforce the trust, the residuary beneficiaries or next of kin may be able to pursue the property on a resulting trust.
  2. the gift offends the rule against perpetuities where a gift is void if, by terms of the gift or of the trust to which it is given, it is required to be retained by the trustees (as a fund) for a period which might exceed the perpetuity period
  3. non-charitable purpose trusts fail on account of an identified purpose that is wasteful or otherwise against public policy’.
  4. ‘issues of impracticability may arise, analogous to those encountered in the context of charitable trusts’.

The Court was concerned that if the funds were transferred to the nephew for the purpose of construction of the crypt. Once the crypt is built, the funds are disposed of and the trust as intended by Francisco is complete.

Emidio queried ‘whether the trust should be upheld as falling into the anomalous category of non-charitable purpose trusts’. The Court was concerned that ‘family’ was not defined and this uncertainty raised issues as to whether it included the immediate family, extended family, predeceased family members, or future family members; similarly when applying the armchair principle it appears, ‘on the plain and ordinary language of the clause; Francesco specifically identified his nephew as being responsible for constructing the crypt’, something the Court couldn’t ensure would happen. In those circumstances, it appears that it creates on an imperfect obligation. The nephew can seek to give it effect if he chooses but is not otherwise bound.

The Court concluded that the trust was invalid. Accordingly, upon a resulting trust, the amount of $200,000 fell to the residuary estate of the deceased.


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