Charitable Gift Void for Uncertainty

Charles Campbell Coghlan died in March 2017 leaving one-third of the residue of his estate to

‘Diabetes Australia of 26 Arundal Street Glebe New South Wales’.

no entity fits that name and address.

On 10 July 2017, probate of Charles Will dated 5 June 2013 was granted to the plaintiff however, three entities who may have been the intended beneficiary were

• Diabetes Australia – the entity named in the will;

• Diabetes NSW – which operates from 26 Arundel Street, Glebe, NSW; or

• Diabetes Australia – Victoria which the deceased had substantial contact throughout his life.

in Re Coghlan; Merriman v Attorney-General for the State of Victoria [2020] VSC 392 the plaintiff sought the Courts direction as to which entity; more than one of the entities; or some other entity had been described as ‘Diabetes Australia of 26 Arundal Street Glebe New South Wales’ in the Will.

At common law, the armchair principle provides that evidence of the circumstances surrounding the deceased at the time they executed the will including evidence of the deceased’s general habits and knowledge, may be admissible but not to evidence of the deceased’s actual testamentary intention.

In situations where the description contained in a Will could refer to more than one entity, evidence that the deceased had involvement with, referred to, or made contributions to one institution during their lifetime, may be admissible in support of a particular construction.

As a general rule courts favour the entity with the correct name. In this case the Court considered that this approach provided

limited assistance in circumstances where the will itself refers to one entity by name and a different entity by address, and otherwise provides no indication as to which of those entities the deceased intended to benefit’

The Court held that unless extrinsic evidence is sufficient to show that a deceased person did not actually mean what is said in a will, the Court is not entitled to re-write it.

As the Court was unable to ascertain the clear meaning of the gift in Charles Will it was rendered void for uncertainty. Ordering that if it could be established the gift was for charitable purposes but the mechanism for administering it was deficient the Court could consider and, approve an appropriate scheme.

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