McKay v Queensland Ballet Company [2026] QSC 137 concerned the construction of the Will of Glenn Rycen Cooke. Cooke died in January 2025, having executed his Will in June 1993. He appointed Judith Marilyn McKay as executor. Cooke was unmarried, had no children, and was a prominent supporter of the arts in Queensland. He served as curator at the Queensland Art Gallery/Gallery of Modern Art and made donations to public institutions. His interest in dance was evident at home and in his collection of dance ephemera, which was later donated to the State Library.
Clause 10(iv) of the Will leaves the residuary:
“… to my Trustee upon trust to be donated to a significant Queensland contemporary dance company in the discretion of the Trustee to form a scholarship for a young dancer or choreographer to assist in the development of such persons’ professional skills.”
The applicant, as executor and Trustee, sought confirmation that distribution of the residuary estate to the Queensland Ballet Company, the first respondent, was permissible.
The second respondent, the Attorney-General for Queensland, participated because the matter involved a charitable purpose trust. The Attorney-General made submissions but did not present evidence or cross-examine witnesses.
The third respondent, Australasian Dance Collective Limited, is a contemporary dance company that joined the proceedings before the hearing. The applicant considered both the first and third respondents potential recipients but preferred the first. The third respondent submitted that the first respondent did not meet the description of ‘contemporary dance company’ and sought an order for distribution of the residuary to itself under s 6 of the Succession Act 1981 (Qld) and s 106(1)(a) of the Trusts Act 1973 (Qld). The applicant sought an advisory direction regarding distribution to the first respondent.
Principal Issues for Determination
The principal issues for determination were
(a) what is the meaning of the words “a significant Queensland contemporary dance company” in clause 10(iv) of the Will;
(b) whether it is for the applicant (who is not alleged to have acted mala fides) to determine if the first respondent fits the description of “a significant Queensland contemporary dance company,” or if that is an objective fact for the Court to decide;
(c) if court determination is appropriate, whether the first respondent is “a significant Queensland contemporary dance company” according to an objective test;
(d) if the first respondent is not identified as such, whether the Court should direct the residuary be donated to the third respondent, either because:
(i) the third respondent is the only remaining potential recipient; or
(ii) the applicant has not genuinely considered donating to the third respondent;
(e) whether the applicant failed to give genuine consideration to her powers.
Principles Governing the Construction of Wills
Hindman J confirmed that the primary objective in construing a Will is to ascertain and give effect to the testator’s intention as expressed in the language of the Will. The ordinary meaning of the words determines this intention, read in the context of the whole Will and any admissible surrounding circumstances.
This approach is consistent with Fullagar J’s statement in ANZ Executors & Trustee Co Ltd v McNab[1999] VR 666 that testamentary intention must be derived from the Will’s words, read as a whole, and with reference to admissible evidence of the circumstances at the time the Will was made. The cardinal rule requires the Court to give effect to the testator’s intention, based on the Will’s language and the circumstances of its execution.
The Armchair Principle and Surrounding Circumstances
The armchair principle allows the Court to consider the testator’s position and circumstances at the time of making the Will to interpret its language. This principle applies regardless of ambiguity. Surrounding circumstances may clarify the language but do not permit alteration of the Will or the inference of unexpressed intentions.
Interpretation of Will Language and Use of Extrinsic Evidence
Hindman J confirmed that construction of a Will starts with the ordinary meaning of its words. Courts must avoid speculation and adopt the most probable objective interpretation. Extrinsic evidence is admissible only where the language is meaningless or ambiguous, either on its face or in context. In Queensland, section 33C of the Succession Act 1981 (Qld) applies but does not displace common law principles on admissible contextual evidence. Evidence of the testator’s subjective intention is admissible only in limited circumstances and cannot establish the surrounding facts that create ambiguity.
Testamentary Scheme and Contextual Interpretation
Where the language of the Will, read in context, reveals a clear testamentary scheme, the Court interprets the Will consistently with that scheme. Individual clauses are read in light of the testator’s overall intentions. The Court adopts the testator’s perspective at the time the Will was made to identify the interpretation that best accords with the language, admissible surrounding circumstances, and the apparent testamentary scheme.
Application for Advisory Direction
Numerous factors may influence where a dance company falls on the contemporary dance spectrum. These factors include:
(a) how the dance company is described and how it presents itself to the community;
(b) the objects of the dance company, including in its constitution;
(c) what works the dance company presents; what percentage of its works are contemporary works;
(d) who it employs in terms of company dancers, what type of dancers are brought in for works from time to time;
(e) if it offers training or classes, in what dance style does it offer training or classes;
(f)What commitment does the dance company have to the advancement of the dance style of contemporary dance?
Hindman J emphasised that the Court’s supervisory jurisdiction over trustees should be interpreted broadly but is not intended to permit the Court to substitute its own opinion for that of the Trustee merely because it may have reached a different conclusion. The purpose of judicial review under section 8 of the Trusts Act 1973 (Qld) is to ensure that trustees exercise their discretionary powers lawfully, rather than to reconsider the merits of the decision itself.
In exercising that supervisory role Hindman J applied the well-established principles set out in Karger v. Paul [1984] VR 161 that a court will not interfere with a trustee’s exercise of discretion where the Trustee has acted honestly and in good faith, has given the matter real and genuine consideration, and has exercised the discretion consistently with the purpose for which the power was conferred Judicial review is therefore concerned with the integrity of the decision-making process, not with whether the Court considers the outcome preferable.
An important qualification arises where trustees voluntarily disclose the reasons for their decisio . In those circumstances, the Court may examine the reasons to determine whether they demonstrate that the discretion has miscarrie . However, this does not broaden the scope of review into a merits appea . The Court is not entitled to reassess whether the Trustee made sufficient inquiries, gathered adequate information, correctly evaluated the evidence, or reached the most appropriate or fair decisio . Nor may the Court invalidate a decision simply because it considers the Trustee’s judgment to have been mistaken, imprudent or unreasonableThe
The scope of this exception was considered in Manglicmot v Commonwealth Bank Officers Superannuation Corporation (2010) 239FLR, where it was held that the applicable principles remain unchanged whether or not reasons are provid d. Although disclosed reasons may facilitate judicial scrutiny, the essential inquiry remains whether the Trustee failed to exercise the discretion in good faith, upon genuine consideration, or for the purposes for which the discretion was conferr d. Disclosure of reasons does not convert judicial review into a reconsideration of the merits of the decision.
Finally, the Court recognised that an inference of improper exercise may arise in exceptional circumstances where a trustee concludes that no reasonable decision-maker could have decided on the evidence availa le. In such a case, the irrationality of the decision may justify an inference that the Trustee failed to act in good faith, failed to give the matter genuine consideration, or exercised the power for an improper purp se. Even then, the Court’s intervention is directed to correcting a failure in the exercise of the discretionary power, rather than substituting its own assessment for that of the Trustee.
Is the first respondent a contemporary dance company?
The question for the Court is whether it can objectively determine whethe respondent meets the requirementtment of being a contemporary dance company, or whether, in this particular case, that is a subjective assessment that ought to be left to the applicant’s discretion. There will plainly be some companies that a court could objectively conclude do not meet the requirement of being a contemporary dance company, and therefore could advise as such.
Court’s Determination on Trustee’s Discretion
Hindman J held that it could not be determined objectively that the first respondent failed to meet the description of ‘a significant Queensland contemporary dance comp ny’. The issue was therefore a matter for the applicant’s discretion asTrusteee.
The Archibald Prize Cases and Trustee Discretion
Her Honour drew guidance from two leading cases concerning the Archibald Prize, a charitable trust established under the Will of John Feltham Archi ald. The will required a certain portion of his estate be held on trust, the income from which was to be paid to theTrusteee of the New South Wales National Gallery to:
provide an annual prize to be styled “The Archibald Prize” for the best portrait preferentially of some man or woman distinguished in Art Letters Science or Politics painted by any Artist resident in Australasia
Both cases illustrate the limited role of the courts in reviewing discretionary decisions made by trustees under a Will.
Attorney-General v Trustees of the National Art Gallery of New South Wales (1944) – Dobell’s Case
The first and most influential authority concerned whether William Dobell’s prize-winning depiction of Joshua Smith qualified as a “portrait” within the meaning of the t ust. Critics argued that the work was more accurately described as a caricature or fantasy because of its exaggerated feat res. Roper J held that the Will entrusted the Gallery trustees with the responsibility of determining both whether an entry was a portrait and whether it was the best port ait. Those questions necessarily involved the exercise of judgment, and reasonable people could legitimately reach different conclus ons. Consequently, the Court would not interfere merely because others disagreed with the trustees’ assessment.
Judicial intervention would be justified only if the trustees had acted in bad faith or if it could be objectively established that the work fell outside the category specified in the ill. The burden of proving bad faith rested on the party challenging the decision.
As no allegation of bad faith was made, and there was ample basis upon which the trustees could reasonably regard the work as a portrait, the Court declined to inter ere. Although unnecessary to determine the issue independently, Roper J also concluded that the painting was, in fact, a port ait. His Honour observed that artistic classifications are not mutually exclusive: a work may simultaneously be a portrait and a caricature or fantasy.
Johansen v Art Gallery of NSW Trust [2006] NSWSC 577
The second case concerned a challenge to another Archibald Prize winner on the basis that the work was a drawing rather than a painting, contrary to the terms of the t ust. Hamilton J reaffirmed the principles established in Do ell. His Honour observed that the ordinary meanings of “painting” and “drawing” are not fixed or mutually exclu ive. The techniques associated with each medium frequently overlap, and some works may reasonably be characterised as belonging to both categories.
Because there was no suggestion that the trustees had acted in bad faith, the plaintiff could only succeed by demonstrating objectively that the work could not properly be described as a pain ing. The Court found this threshold could not be met. After considering the appearance of the work, dictionary definitions, and the techniques used in its creation, Hamilton J concluded that reasonable minds could differ as to its classifica ion. Since the work could not objectively be excluded from the category of a painting, the trustees’ decision remained a legitimate exercise of judgment.
Importantly, the Court reached this conclusion without relying on the competing expert evid nce. The fact that two highly qualified experts expressed opposing but equally reasoned opinions reinforced the conclusion that the issue was inherently one of evaluative judgment rather than objective act. Accordingly, the trustees’ decision could not be characterised as erroneous or as a breach of trust, and there was no basis for judicial intervention.
Her Honour was satisfied that the applicant had given genuine consideration to the exercise of her po ers. It was unnecessary to determine whether the first respondent objectively satisfied the description or whether the third respondent should receive the ift. The Court granted the application for an advisory direction and dismissed the third respondent’s interlocutory application.
Principles Established
Together, the Archibald Prize cases establish several enduring principles governing the interpretation of discretionary testamentary trusts:
- Where a Will confers a discretionary evaluative judgment on trustees, the Court will ordinarily respect that judgment.
- The Court will not substitute its own opinion simply because competing interpretations are reasonably available.
- Judicial intervention is limited to cases involving bad faith, improper purpose, or where thTrustee’s’s decision is objectively outside the scope of the power conferred by the Will.
- Where the relevant description admits of more than one reasonable interpretation, thTrustee’s’s bona fide decision will generally prevail.
- Competing expert opinions often demonstrate that a question is one of judgment rather than objective fact, thereby reinforcing thTrustee’s’s discretionary authority.
These authorities demonstrate that courts distinguish between objective questions of legal validity and evaluative decisions that a testator has deliberately entrusted to a trustee’s discr tion. Unless that discretion is exercised dishonestly or upon a demonstrably incorrect factual foundation, the courts will not interfere merely because another decision could also have been reasonably made.
Her Honour considered that the proceeding is properly resolved in the same way as was undertaken in the Archibald Prize cases referred t Whether, under
Under clause 10(iv) of the Will, the applicant was and is required to act in good faith, on genuine consideration, and in accordance with the purpose for which the power is conferred Both parties accept that Dr McKay (as trustee) was not required to give natural justice, was not required to seek out all possible recipients of the monies, and did not have to take into account all relevant information.
In respect of the latter, Lewin on Trusts says at [29-042] (citations omitted):
The duty to take relevant matters in consideration is in our view best regarded as an element in the duty to act responsibly, so that the trustees must have a rationale basis for a decision but will be in breach of duty only if a given matter is so significant that a failure to take it into account would be irrational.
- whether it was for the Trustee or the Court to determine if the first respondent satisfied that description;
- whether the first respondent met the description if the Court were to decide;
- whether the third respondent should receive the gift if the first respondent did not qualify as a Trustee and had not properly considered the third respondent;
- and whether the applicant understood the distinction between traditional or classical art and contemporary or modern art, including dance, and had genuinely exercised their discretionary powers.
Her Honour was satisfied that the applicant had given genuine consideration to the exercise of h r powers. It was unnecessary to determine whether the first respondent objectively satisfied the description or whether the third respondent should receive the gift. The Court granted the application for an advisory direction and dismissed the third respondent’s interlocutory application.
Distribution of Residuary Estate
Hindman J granted the application for an advisory direction, confirming that the applicant would be justified in distributing the residue to the first respondent. Her Honour held that the applicant did not fail to give real and genuine consideration to the exercise of her power . The third respondent’s application for orders directing distribution of the residue to it was dismissed.
Evidentiary Case and Expert Testimony
Three principal parties advanced the evide tiary case. The applicant relied on their affidavit and oral testimony and was cro s-examined. The first respondent relied on affidavit and oral evidence from its Executive Director, Maryanne Weerasinghe, and expert reports and oral evidence from Eliz beth Gibbs. The third respondent relied on affidavit and oral evidence from its Artistic Director and Chief Executive Officer, Amy Hollingsworth, and expert reports from Angela Conquet.
Competing Expert Opinions on Contemporary Dance
A significant part of the proceeding concerned competing expert opinions on the meaning of contemporary dance and whether Queensland Ballet could be characterised as a contemporary dance company.
The experts disagreed on the nature of contemp rary dance. Dr Gibbs described contemporary dance as an evolving, hybrid art form that frequently incorporates ballet, with increasingly blurred boundaries betw en the two. In her opinion, Queensland Ballet should be regarded as a hybrid dance company whose repertoire extends beyond traditional ballet and therefore falls within the concept of a contemporary dance company.
Dr Conquet maintained that contemporary dance is a distinct artistic discipline, separate from ballet in both its institutional identity and aesthetic traditions. She considered Queensland Ballet to remain a ballet company, notwithstanding that it performs contemporary works within its repertoire.
The divergence in expert opinion reflected disagreement about the definition of contemporary dance and whether distinctions remain between ballet companies and contemporary danc companies. The experts reached opposing conclusions on the classification of the first respondent.
Court’s Approach to Expert Evidence
Hindman J gave no weight to the expert evidence, noting that the opinions of the experts and senior representatives of the first and second respondents were of doubtful ad issibility. There was no evidence that the testator used the phrase significant Queensland contemporary dance company in a specialised or tech ical sense. Hindman J held that the Will should be interpreted according to the ordinary meaning of the testator’s words, informed by the surrounding factual circumstances rather than expert classifications within the dance profession.
Testator’s Intentions and Understanding
Her Honour disregarded the expert debate and examined the evidence of the testator’s intentions and understanding at the time the Will was drafted, as this evidence was more relevant to the construction of the charitable gift.
Final Orders and Conclusion
Hindman J concluded that, on the proper construction of the Will, it was not possible to determine objectively that Queensland Ballet fell outside the description of ‘a significant Queensland contemporary dan e company’. The matter was left to the applicant’s discretion, provided they acted in good faith. Hindman J found no basis to conclude that the applicant’s proposed decision was improper or outside t eir powers. Her Honour was satisfied that the applicant had given genuine consideration to the exercise of their discretionary powers, including consideration of the third respondent as a potential beneficiary.
Conclusion
McKay v Queensland Ballet Company [2026] QSC 137 reinforces several well-established principles governing testamentary trusts.
First, a Will must be construed objectively by reference to the testator’s words, read as a whole and in light of the admissible surrounding circumstances, rather than by competing expert opinions or subjective views of what the testator may have intended.
Secondly, where a will confers a discretionary power upon a trustee, the Court will not substitute its own judgment merely because another decision could reasonably have been made.
Consistent with Karger v Paul, judicial intervention is confined to cases where the trustee has acted other than in good faith, failed to give real and genuine consideration to the exercise of the discretion, or acted outside the purpose for which the power was conferred. McKay v Queensland Ballet Company also demonstrates that competing expert evidence may simply confirm that a question is one of evaluative judgment rather than objective fact, reinforcing the trustee’s decision-making authority. More broadly, Hindman J illustrates that the Court’s supervisory jurisdiction protects the integrity of trustees’ decision-making processes without transforming judicial review into a merits appeal.