Benjamin Orders & the Missing Daughter

Ian Roderick Douglas died in February 2013 aged 72. Ian was unmarried, with an estate valued at $ 1,250,000. In a Will (“the Will”) made in May 2010, he appointed David Cummins and Barry Miller as his executors (“the executors”) probate of the Will was granted to them in May 2013.

Following payment of debts and other pecuniary legacies the Will distributed one half of the residue to his daughter Darcel Wu; the other half of the residue was left to a daughter he had yet to find, whose name and whereabouts were unknown to Ian at the time he made the Will but who he believed lived in Victoria (“Victorian daughter’).

“If it can be established that the Victorian daughter died before me leaving children then her children shall take the share which their mother would otherwise have taken. If my Victorian daughter cannot be found or is proved not to have survived me and to have died without children then the share she would have taken shall pass to Darcel.

Darcel was born in 1964, and until she was 17 believed that her mother’s husband was her father, she met Ian about 1990, following which they met infrequently. In 2012 Ian told Darcel that he had been made aware that he had fathered a daughter who lived in Victoria who he wanted Darcel to meet once his Victorian Daughter had been located.

Neither the executors nor the persons who were given pecuniary legacies by the will had any knowledge of Ian having another daughter. Ian told Darcel that he did not know the name of his daughter or anything about her, only that she might exist.

Establishing the identity or whereabouts of the Victorian Daughter to whom part of Ian’s estate should be distributed and the inability, despite adducing all available evidence, of ruling out the possibility that she exists or had descendants who might still be alive adds considerable difficulty to the executors’ duties. Unless after considering the available evidence the Court orders that the executors may distribute the estate, administration of the estate cannot be finalised.

The executors were unable to identify or locate the “Victorian daughter” and applied to the Court seeking a “Benjamin order” allowing them to distribute the whole of the estate to Darcel without prejudice against the rights of the Victorian daughter (or her children) to claims to a half share of the residuary estate.

A “Benjamin order” is named after Re: Benjamin; Neville v Benjamin 1902] 1 Ch 723. Where a beneficiary was presumed dead having not been heard of for seven years. The Will maker died less than a year after the beneficiary was last heard of. A “Benjamin order” relieves the executor from liability if the estate or part of it was distributed to the wrong person.

An example of orders usually sought are:

1. a declaration that the beneficiary predeceased the deceased;

2. in the alternative, an order that the plaintiff be at liberty to distribute the estate;

3. in the alternative, the plaintiff seek the opinion and advice and direction of the Court in respect of the facts set out in the plaintiff’s affidavit; and

4. an order that the plaintiff’s costs be paid out of the estate on an indemnity basis.

The plaintiff is required to carry out all necessary and proper investigations to determine the persons who are or may be entitled on intestacy to the estate.

The Court was satisfied that all reasonable attempts had been made by the executors to locate the beneficiary, and ordered that they were free to distribute the estate to Darcel without personal risk. The Court further held that no conditions (such as a grant of security by Darcel ) should be placed on the order.

Mabo Day

Yesterday was Mabo Day, marking the anniversary of the historic Mabo decision. On 3 June 1992, the High Court of Australia rejected the doctrine that Australia was terra nullius (land belonging to no-one) at the time of European settlement.

Eddie Koiki Mabo was the son of Robert and Poipe Sambo. Shortly after his birth, his mother died, and Eddie was adopted, by his maternal uncle, Benny Mabo, and his wife, Maiga under ‘Aislan Kustom’.

He was raised on Mer as a member of Benny Mabo’s family and, it was through his adopted parents he inherited traditional land.

Murray Islander’s, according to Eddie inherited land, as male descendants. Women inherited land only in cases where the family had no male children. A father makes it known during his lifetime his wish as to which one of his sons would be the heir to his land.

“… it was handed down from generation to generation, they knew by the boundary lines and markers. There was a certain tree, or stones, heaps of rocks, different trees. They knew exactly where the place was.”

In the extended land rights litigation that culminated in the High Court decision known as Mabo, these portions of land were claimed under customary law.

‘Whether Eddie Mabo was adopted by Benny and Maiga Mabo with the consequence that he became their heir is very much in issue in the proceedings.’

Benny Mabo died intestate; it is not uncommon for Aboriginal and Torres Strait Islander people to not make Wills, however the cultural construction of kinship including the fact that the pattern of family on which the common law and the intestacy rules are based does not fit with that of Indigenous people enabled the State of Queensland to argue Eddie Mabo was not, adopted by Benny.

Eddie had lived with his uncle informally for a number of reasons including for the purpose of claiming social security payments to which they were not entitled.

The court accepted that some Murray Islanders recognized the existence of Mabo land on the Islands, however, Eddie was not a credible witness; was not adopted as heir by Benny and Maiga, nor did Benny transfer land to him during his lifetime.

If Benny had made a Will formalising his intention to leave his land Eddie would have less trouble in establishing, his right to portions of Mabo family lands, fish traps, fringing reefs, and seas.

In the early stages of the case, the Queensland Parliament passed the Torres Strait Islands Coastal Islands Act that stated

‘Any rights that Torres Strait Islanders had to land after the claim of sovereignty in 1879 is hereby extinguished without compensation’.

this legislation was challenged in the High Court and the Act was found to be invalid under the Commonwealth Racial Discrimination Act 1975. In a second case, the High Court rejected the notion that Australia was terra nullius and that the Mer people had owned their land prior to the establishment of the colony of Queensland

 

iPhone Video Accepted as Informal Will

 

In June 2011 Leslie Quinn made a video recording on his iPhone he called his Will. It recorded his wishes in relation to the disposition of his property after his death as follows:

“It’s Sunday, 26th of June, 2011.

This is the, my last will, I am making by video.

In the event of my death, I would like all my goods, my interests in property…. to go to my wife, Leanne Quinn.

Anything, any, any money, money that I have, cash, I’d like that to go to my wife Leanne, Leanne Quinn.

All of, any goods that I have or any money owing to me for any reason, I’d like, I’d like to leave that to my wife, Leanne Quinn. Also my superannuation, currently in Tasplan, I leave that to my wife. 

So in essence, I am leaving everything to my wife, Leanne Quinn. 

As far as my, what I request for my funeral, I would like a direct cremation… I would like my ashes to be disposed of by the funeral service. I do not want a memorial or funeral. I do not want, I especially do not want anybody to own my ashes after my death.”

Leslie took his own life aged 53 in June 2015; after suffering from depression for several years leading up to his death and although he sought medical help had ceased taking medication. Leanne was married to Leslie for twenty years and was the mother of two of his three sons; they had been separated for two years before his death but they had not divorced.

Leslie was survived by three sons: Jacob, Samuel and Callan aged 23, 19 and 18 at the time of his death.

Leanne sought a declaration that the video recording was the Will of Leslie and a Grant of Letters of Administration with a copy of the transcript of the recording attached.

Section 10 of the Succession Act 1981 (Qld) (the Act) sets out the formal requirements that a Will be in writing and signed in the presence of two witnesses. The video recording does not meet those requirements; Leanne submitted that the video recording as contained in a copy on the CD may be admitted to probate as an ‘informal Will’ if the court finds that it meets the requirements of s 18 of the Act.

If the Court determines that the video is an informal Will Leanne inherits the whole of Leslie’s estate. Alternatively, if the Court is not satisfied that the video meets the requirements, Leslie died intestate and the estate would be distributed to Leanne and Leslie’s three children.

Although the execution requirements of s 10 of the Act have not been fulfilled, the Court was satisfied the recording on the iPhone was a document within the meaning of the Act.

The Court applied the test for testamentary capacity as set out in Banks v Goodfellow and was satisfied that Leslie at the time of creating the video recording, understood the nature of the act of creating a Will and its effects and understood the extent of the property of which he was disposing. In the circumstances of this case the Court was satisfied that Leslie was mentally competent, knew and approved the contents of the will.

Although the video recording was made before Leslie and Leanne separated, and extensive searches were made, no other documents have been found. The Court found no evidence that Leslie intended to revoke or alter the terms of his Will in the period between the date of the recording and his death.

It is not uncommon that informal Wills are admitted to probate, but these can cause delay and increased legal costs for the estate.

Additional costs can be avoided by preparing a Will that clearly demonstrates the Will maker’s intention. This doesn’t necessarily require instructing a solicitor to prepare a document however the language of the document must be clear. Importantly it is better to have a document that clearly outlines your intentions to provide some comfort to your loved ones at a difficult time in their lives.

 

 

 

 

Aretha Franklin & the 3 Informal Wills

Following up a previous post regarding Aretha Franklin who died from advanced pancreatic cancer in August last year.  Described as The Queen of Soul, Aretha won 18 Grammy Awards and had more than 100 singles on the Billboard charts;  at the time of her death, it was reported that Aretha had not left a will or established a trust.

Aretha’s estate could be worth millions of dollars; as it contains not just her music catalogue but also clothing, memorabilia and rights to her likeness. The estate is currently in negotiations for a TV series and movie about Aretha’s life.

The Internal Revenue Service is currently auditing Aretha’s tax returns after claiming more than $6 million in taxes in December.

Detroit renamed of a city-owned outdoor music amphitheatre after Aretha. At the unveiling the Mayor claimed

“This daughter of Detroit has a permanent memorial,”

Under Michigan law, the assets of an unmarried person who dies without a will are divided equally among their children. Aretha had been married and divorced twice. Following her death, her four sons filed a document listing themselves as interested parties in her estate stating that Aretha

“…died intestate and after exercising reasonable diligence, I am unaware of any unrevoked testamentary instrument relating to property located in this state as defined.”

Aretha’s niece Sabrina Owens asked the court to appoint her, (and Aretha’s Sons agreed, that Sabrina should act) as personal representative of the estate.

Early this month, Sabrina discovered a key to a locked cabinet at Aretha’s home. The cabinet contained 2 handwritten wills from 2010; one states that a previous will from decades earlier is “no good.” , the other is 11 pages long and is signed by a notary.

Sabrina discovered a further will, dated March 2014, located in a notebook found under living room cushions; although difficult to read the document sets aside various assets for family members, including her sons and grandchildren, in this document, Aretha states she wants her son Kecalf Franklin, to serve as personal representative of the estate.

After filing the documents in Court David Bennett, who was Aretha’s lawyer for more than 40 years, sought clarification that the Wills were legal under Michigan law. The Court has scheduled a hearing for June 12. A statement from the estate said two sons object to the wills. Until then Sabrina will continue to serve as personal representative of the estate.

In a Separate dispute, Kecalf is objecting to Sabrina’s plan to sell a piece of land for $325,000.

Michigan law gives great weight to the wishes if they are a clear and convincing expression of the deceased’s wishes. Last year the State Supreme Court allowed a man’s final written words stored on a phone as a will.

However, the newly discovered wills appear disorganized and look more like rough drafts; words are crossed out and the documents contain notes in the margins and arrows.

It is not uncommon for people to die intestate, as I have posted Prince, Billie Holliday, and Kurt Cobain died intestate, however, given Aretha’s legacy, business acumen, and long illness it is surprising that she didn’t make better arrangements for the control of her legacy.

 

 

 

 

 

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.

 

Mesne Profits & The Estranged Co-owner​

Laura Angius and her estranged husband John Angius co-owned a residence at her death in 2012. They had separated in 2010 but had not had commenced divorce proceedings. Laura’s estate was valued in excess of $23 million. On 1 April 2014, Laura’s solicitor Gordon Salier was granted letters of administration with a copy of the will annexed.

On 30 September 2015, following multiple applications the Supreme Court made the following orders:

  1. The residence was to be sold, and
  2. John agreed to vacate the residence within 28 days.

John vacated the premises in 2017 following further proceedings; however, he brought a claim against the estate seeking $41,471 equal to 50 per cent of the repairs maintenance and improvements he’d undertaken to the residence since Laura’s death.

The Court awarded John $6,589 equal to 50% of the amounts in relation to fixtures, fittings and maintenance outlined in five invoices totalling $13,178.64; and a further $4,260 for 50% of the council rates, water rates and insurance premium for the years 2012 to 2016

John claimed that he had spent $55,738 on Laura’s funeral and $385,000 on a 12-person vault in which she was buried.  The Court held that the “reasonable cost of a reasonable headstone” is recoverable from a deceased estate however the cost of a twelve-person vault was not a reasonable cost of a reasonable headstone for which the estate should be liable.  Accordingly, the court awarded John $55,738.72. equal to one-twelfth of the cost of the vault plus the cost of the funeral expenses.

Gordon sought mesne profits at half market rent for his occupation of the residence from the date of death to the date he vacated the residence.

Mesne profits are the damages which a lessor is entitled to receive due to the tort of trespass of the lessee in remaining in possession following termination of the lease: the usual measure of mesne profits is the market rent for the premises which should have been paid for the period of its occupation. Importantly it does not depend on whether the person entitled to possession would have been able or willing to let the premises to someone else during the relevant period.

The Court held that as co-owner John had an implied licence to occupy the residence until 2015 because his occupation was with the apparent acquiescence or implied consent of the estate. Mesne profits were awarded for the period from 2015 to 2017 in the amount of $67,371.43 based on expert evidence that valued market rent for the property at $1,800.00 per week between 1 January 2015 and 31 December 2016 and $1,950.00 per week between 1 January 2017 and 1 May 2017.

The amount payable to John by the estate ($98,672.05) was set off against the amount he owed the estate ($118,333.48). Therefore John was ordered to pay $19,661.43 to the estate.

 

 

 

 

 

John Singleton

John Singleton was an American film director, screenwriter, and producer best known for directing Boyz n the Hood (1991); for which he was nominated for the Academy Award for Best Director, becoming the first African American and youngest person to be nominated for the award.

The son of Sheila Ward-Johnson, and Danny Singleton, John was raised and attended schools in South Los Angeles before enrolling in USC’s Filmic Writing program; designed to take students directly into the Hollywood system as proficient writer/directors.

Many of John’s early films, deal with the implications of inner-city violence including Poetic Justice (1993), Higher Learning (1995), and Baby Boy (2001), However he also directed action films such as the remake of Shaft (2000), 2 Fast 2 Furious (2003), and Four Brothers (2005); recently he co-created the crime drama Snowfall.

John died on April 29 in Los Angeles, nearly two weeks after he suffered a stroke and fell into a coma. He was the father of seven children, however when John’s mother Sheila filed for probate, his Will, drafted in 1993 left everything to his eldest child, daughter Justice Singleton.

In 1993 Justice was his only child, however the Will didn’t expressly exclude his other children therefore they will be able to inherit under California law. Sheila was named the executrix of the Will and probate documents listed the estate assets as $3.8 million, with another $31 million reported to be in a trust.

A trust is a legal relationship where the trustee, holds property (money, real estate, stocks, bonds, collections, business interests, personal possessions and automobiles) for the benefit of the beneficiary.

A trust can be established for the beneficiary during their lifetime, in order to control the distribution of wealth by specifying when and to whom distributions may be made; then for the benefit of others according to the trust instructions. Unlike wills, trusts are private.

Importantly Assets in a trust usually don’t form part of a deceased estate and pass outside of probate, saving time, court fees, and potentially reducing estate taxes as well.

John was in a coma at a Los Angeles hospital after suffering a major stroke; as he had no existing medical directives in place before the stroke Shelia sought a court order to be appointed as temporary conservator in order to make medical and financial decisions for him.

John’s daughter Cleopatra challenged Shelia’s attempt to become conservator denying that her father was in a coma, and accusing her grandmother of trying to keep control of her father’s assets and block out the rest of the family, leading to reports of bickering between family members.

As I have posted before a Will is a planning document that enables you to direct how your assets will be distributed when you die. It is important to make a Will and update it regularly!

 

 

 

 

Signed Solicitors Notes a Codicil Does Not Make

Suzanne Prien died in February 2016 aged 64; her daughter, Sasha Prien, son Simon Prien, and her former spouse, Percival Kirk Prien (‘Kirk’) survive her.

Suzanne’s estate primarily consisting of a house in Marysville (‘the Marysville property’), compensation from the Murrindindi–Marysville Black Saturday Bushfire Class Action (‘the Class Action’), investment funds and chattels is valued at $927,285.

The Class Action against electricity company SP AusNet was settled in February 2014 for A$300 million.

In 1996, Suzanne was diagnosed with breast cancer; following treatment and remission, metastatic bone cancer was diagnosed in 2008. In late 2008, while in remission, the deceased instructed her solicitor, Mr David Davis, to draft her will, which was executed on 17 December 2008 (‘the 2008 Will’).

Around this time Suzanne and Kirk divorced, however they remained on good terms.

In February 2009, Suzanne lost all of her belongings, including the 2008 Will, when her home in Marysville was destroyed in the Black Saturday bushfires; the Marysville property was subsequently rebuilt. Following the fire, Suzanne instructed David in relation to ‘reinstating’ the 2008 Will; on 29 July 2009, Suzanne executed the Will appointing the Sasha executor.

In 2009, Suzanne and her son Simon became estranged; they have had no contact in the intervening years.

In February 2016, David, Suzanne’s solicitor attended her home to take instructions for a new Will; Suzanne was sitting in the living room and fully dressed, recognised and greeted David who spent one and a half hours obtaining instructions for the will. According to David, Suzanne stated that following careful consideration she had decided the distribution of her estate, in equal proportions between Sasha and Simon was no longer fair. Instead, she wanted to distribute her estate in three ways, leaving Sasha a greater share that included the Marysville property.

David took two pages of notes during the appointment and showed Suzanne the relevant clauses of the will as they were discussed. Both signed at the end of the notes beside a statement that

‘[t]hese notes form confirmation of my testamentary intentions Suzanne Rosalyn Prien 15/02/2016’. 

Mindful of Banks v Goodfellow, Mr Davis was of the opinion that Suzanne had testamentary capacity, and although she seemed tired, maintained her focus and clarity throughout.

Suzanne was admitted to hospital on the afternoon of 23 February 2016, following a stroke. Later that day At 4.52 pm the same day, David Davis & Associates emailed a draft will to Suzanne; however, she lapsed into unconsciousness and died the following day without seeing or being told about the draft Will.

Sasha sought a grant of probate of the Suzanne’s will dated 29 July 2009 including an informal codicil consisting of two pages of notes (‘the notes’) dated 15 February 2016 written by the David in the days before Suzanne’s death. The will was executed in accordance with s 7 of the Wills Act 1997 (‘the Act’). However, the Court had to decide whether the notes should be admitted to probate as an informal codicil to the will, pursuant to s 9 of the Act.

The Court ordered that probate of the Will dated 29 July 2009 be granted to Sasha, subject to any further requirements of the Registrar of Probates.

Sasha did not establish that upon signing, Suzanne intended the notes to have an immediate effect, without further explanation, as a document altering the Will. This conclusion is supported by the fact that the deceased signed the statement providing that the notes formed ‘confirmation’ of her ‘testamentary intentions’ only.

Section 9 of the Act is a remedial provision allowing the Court to dispense with the requirements for execution that are set out in s 7 and applies to both informal wills and informal codicils; however, care must be taken to ensure that the statutory formalities for execution of Wills set out in s 7 are not unduly relegated in importance.

Three criteria must be established for the Court to admit a document to probate in accordance with s 9:

(a) there must be a document;

(b) the document must express the testamentary intentions of the deceased; and

(c) the document must have been intended by the deceased to be a codicil to her or his last will.

The Court held that the notes comprise a document; expressed Suzanne’s testamentary intentions, however, the intention that the document is to be a final codicil and not intended to be changed is a matter of fact and each case depends on its own facts and circumstances

The Court was satisfied that Suzanne had testamentary capacity when she signed the notes on 15 February 2016; however, the Court was concerned that allowing probate of a document consisting of shorthand notes forming instructions, not signed by two witnesses and containing only the statement ‘these notes form confirmation of my testamentary intentions’, in circumstances where there was no pressing urgency, would unduly relegate the requirements for execution as set out in s 7 of the Act.

 

 

 

Oprah Winfrey & Cy-Pres (for a third time)

Paul Russell was named the executor and trustee by Euphemia (Mia) Polykarpou in her will of March 2004. Mia died on in March 2015, and probate of her will was granted to Paul in October 2015.

In previous posts about Mia’s estate; after appointing Paul as her executor and trustee, and making a number of minor bequests, Mia made the following gift:

  1. MY EXECUTORS shall hold the rest and residue of my Estate to divide as follows: –

    4.1 As to a 50% part or share thereof to be used for research into the causes of and cures for MULTIPLE SCLEROSIS, the distribution and use of such funds, whether to any hospital, medical practitioner, scientist or research facility to be at the discretion of the Executor;

    4.2 As to the remaining share thereof to ‘OPRAH ANGEL NETWORK’ 110N Carpenter Street, Chicago, Illinois 60607 United States of America.

The gift to Oprah Angel Network (OAN) failed as the OAN ceased to exist before Mia’s death.

In December 2015, Paul made an application to the Court for advice under s 63 of the Trustee Act 1925 (NSW) on the question of whether he would be justified in making an application for a cy-près scheme in relation to the gift in clause 4.2 of the will.

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 this occurs, the court can step in and establish a scheme known as 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 fulfilment 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.

There were two applications to the Attorney General with proposals for the use of the trust funds of $609,127.66.

  1. 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.
  2. 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

The Court ordered that a cy-près scheme (pursuant to the Charitable Trusts Actsection 13(2)) be established that reflected the intended purpose of clause 4.2 of Mia’s will to provide for

 “…the betterment, support and enrichment of women and children in need or for educational purposes…”

under that order, the Young Women’s Christian Association of NSW (YWCA)

 “…is to hold the gift in clause 4.2 of the Will of the deceased on trust, to apply the capital and income for the purpose of establishing and funding a post-crisis domestic violence centre in Campbelltown which provides services to women and children as described in the YWCA’s application to the Crown Solicitor”.

Paul was of the opinion that the cy-près scheme did not reflect Mia’s wishes as she was a devotee of Oprah Winfrey for many years and that, if the gift failed, she would have wanted her estate to be applied for the purposes of an alternative charity associated with Ms Winfrey that had objects that were as close as possible to the OAN.

Case law has established that charitable trust proceedings may be settled by compromise. The Court has inherent jurisdiction to approve the terms of such a compromise; the consent of the Attorney General who represents the Crown as the protector of charities is a necessary condition to the Court’s approval. The Attorney General and Paul asked that the Court quash the orders made in October 2007 and $566,077.66, be applied cy-près as follows:

(a) 60% of the Charitable Trust to the Polykarpou Trust to be applied for such purposes of the Oprah Winfrey Leadership Academy Foundation (OWLAF) as are charitable purposes for the betterment of women and children who are in need or disadvantaged.

(b) 40% of the Charitable Trust to YWCA Australia to be applied for:

(i) the purpose of establishing and funding a post-crisis domestic violence centre in Campbelltown which provides direct services to women and children affected by domestic violence, within 12 months of the date of the establishment of the cy-près scheme;

and in the event that YWCA Australia is not able to apply towards that end within 12 months of the date of the establishment of the cy-près scheme,

(ii) the benefit of women who participate in the Ngalingah Mijung Dubais (Our Happy Women) programme in the Northern Rivers Region of New South Wales, led by a YWCA Australia Cultural Engagement Officer, which provides education, employment and pre-vocational courses to Aboriginal and Torres Strait Islander women in the Lismore area, many of whom have young children to develop skills necessary to enter the workforce opportunities.

 

 

 

 

 

 

 

 

 

Robert Johnson’s Intestate Estate mirrored his life

American blues singer, songwriter and musician Robert Johnson produced a series of recordings in 1936 and 1937 that owing to the combination of his singing, songwriting and guitar playing influenced generations of musicians. Robert died intestate in 1938 aged 27; his poorly documented life and mysterious death have given rise to many legends – notably that at a local crossroads, in exchange for his soul, the devil bestowed him with the talent required to achieve musical success. He was a progenitor of the Delta Blues and his talent is now widely recognized.

Robert died destitute, but his estate later made millions. A collection of his recordings entitled The Complete Recordings containing every recording known to have been made by Robert won a Grammy Award in 1991 for Best Historical Album, in 1992, the Blues Foundation inducted the album into the Blues Hall of Fame; in 2003 it was selected as  “culturally, historically, or aesthetically significant” by the National Recording Preservation Board in the Library of Congress’ National Recording Registry . The album cover featured one of the two known photos of Robert, sitting cross-legged on a stool wearing a pin-striped suit and a tie and holding his guitar.

The second image shows him in a button-down shirt, staring directly at the lens. A cigarette hangs from his lips and his long fingers rest on a guitar neck

Robert’s half-sister, Carrie Thompson filed as next of kin on Johnson’s small estate in 1974, allowing her to share in all royalties of Johnson’s works, photos, and miscellaneous items concerning Johnson.

In 1983, Carrie died leaving her stepsister Annye to manage her affairs. In 1989,  Annye was appointed administrator of both Carrie and Robert’s estates.

At the time, the court noted that Johnson’s estate consisted of “miscellaneous and unknown” items. However, everything changed the very next year when Columbia Records released “Robert L. Johnson – The Complete Recordings.”

The 1990 album release generated a considerable amount of revenue to the Robert Johnson estate. After the estate had mushroomed in size from royalties, an individual named Claud L. Johnson came before the court claiming that he was the illegitimate son of Robert L. Johnson.

At first, the courts dismissed Claud’s case on the basis that he did not file his petition within the allotted amount of time; Claud appealed and subsequently, the case was overturned by the Mississippi Supreme Court.

The Court ruled that not hearing Claud’s case would only benefit Annye who, as executor of the Johnson estate, had a fiduciary duty to locate any rightful heirs.

Robert was so unappreciated at the time of his death that no one is even really sure where he is buried. With the Court ruling that it was impossible to get DNA evidence from a body that did not exist.

Claud’s lawyers were able to prove his connection to Robert, through a number of alternate methods including, a deposition sworn by his mother Virgie Jane Smith Cain in 1992 that Robert Johnson had fathered her child; corroborated by her childhood friend, Eula Mae Williams, who testified that she had watched Robert and Virgie have sex in 1931!

In 1998  the Mississippi Supreme Court ruled that Claud a retired truck driver was Robert’s son and sole heir and was entitled to more than $1 million dollars in music royalties.

The Mississippi Supreme Court subsequently ruled in  2014 that Claud could keep the profits from the only two known photographs of his father.