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.

Calderbank Offers in Recent Courts of Appeal decisions

Recently I discussed the genesis of Calderbank offers, an offer of settlement expressed to be

“without prejudice save as to costs”

A Calderbank offer can be oral or in writing; an oral offer may be given less weight depending on the circumstances of the case. Importantly the court exercises its discretion regarding costs.

A Calderbank order may be made on an indemnity basis in favour of

a successful party contrary to the rule that costs are awarded on an ordinary basis ; or

a losing party contrary to the general rule that costs follow the event .

Western Australia

In Shephard v Galea and Byrne as Executors and Trustees of the Estate of the late Joseph Galea the appellant (Georgina) brought a derivative action against her siblings and executors (Carmen and Tony) of their father Joseph Galea’s estate. 

Joseph transferred his property to Carmen and Tony before his death, leaving little in the estate. Georgina sought relief on behalf of the estate alleging that the transfer was the result of undue influence and unconscionable conduct by Carmen and Tony. 

The court held Georgina’ failure to accept the 8 June 2018 Calderbank offer from Carmen and Tony to be unreasonable conduct and granted the orders sought for indemnity costs after 8 June 2018 

The appeal against the primary decision and the cost’s decision were dismissed.

New South Wales

In Wallis v Rudek the parties disagreed on the precise terms of an arrangement where an adult daughter paid $827,498.27 to discharge the balance of her parents’ mortgage and her parents transferred ownership of the home to her. 

The daughter and her immediate family moved into the home and the parents continued to reside on the ground floor; the daughter prepared a licence agreement for the parents to sign but they refused.

Difficulties emerged between the parents, their daughter and her family, leading to the daughter giving notice to her parents to vacate the ground floor of the house.

The parents resisted the notice claiming their daughter promised they could live, rent-free in the ground floor of the house until they died, and their daughter would live in the upstairs part of the house. In the alternative, the parents sought the difference between the amount paid by their daughter to discharge their mortgage and an asserted value of the home of $1,050,000. 

The primary judge found that there wasn’t a commitment that the parents had an unqualified right to reside in the property for the rest of their lives ; ordering the daughter pay equitable compensation to her parents equal to the difference between what she had paid to discharge their mortgage and the uncontested value of the house accepted at trial. 

On 20 February 2018, the daughter had offered “…to minimise any further animosity or hostility between the family” $200,000 to the parents if they were to vacate the property. The parents had rejected the offer.

On 17 April 2018 the daughter relying on Calderbank v Calderbank principles made a further offer “to resolve this matter now” stating if the offer was rejected and she was successful in any hearing, the offer would be used in support of an application for an order for costs on an indemnity basis.

The appeal was dismissed with costs.

Calderbank – ”without prejudice save unto costs”

A Calderbank offer is made by one party putting the other side on notice that if the dispute goes before a court, and the outcome is less favourable to the other the court,  in exercising its discretion as to costs, can order a party who rejected the settlement offer to pay the successful party’s costs up to the time the offer was made, on an ordinary basis; and from the date of the offer to the end of the litigation on an indemnity basis. 

Jacqueline and John Calderbank were married to each other for 17 years. In January 1973 Jacqueline left home and commenced divorce proceedings seeking a declaration that the family home, was her property. John sought a financial provision or alternatively a property adjustment order. 

When her mother died in 1964 Jacqueline inherited about £30,000 and following her father’s death in 1969 another £50,000. As a consequence, Jacqueline purchased the matrimonial home around 1970; although the home was put into John’s name for financial reasons. In June 1970 Jacqueline had purchased a house that was made available for the occupation of John’s mother.

Therefore prior to the marriage breakdown, Jacqueline and John were living in a home financed by Jacqueline; similarly, she was paying their children’s school fees.

The court awarded John £10,000 plus court costs. On appeal, the Court upheld the £10,000 damages but reversed the burden of paying legal costs from Jacqueline onto John; as prior to the matter going to trial, Jacqueline had offered John the house that was rented to his mother as settlement.

The Court held that the legal proceedings had been unnecessarily prolonged by John’s refusal to accept Jacqueline’s settlement offer.

Anatomists, Bodysnatchers and the Iron coffin

In the eighteenth and nineteenth centuries in England and Wales, body-snatchers or resurrectionists were commonly employed by anatomists. A shortage of available bodies for medical students and doctors to study and dissect led to corpses becoming a commodity; although the general public was concerned by disinterment, bodies were not legally anyone’s property.

Measures taken to stop resurrectionists included, night patrols of graveyards sites, physical barriers such as “mortsafes” ranging from iron cages to heavy stone table tombstones or concrete boxes and heavy stone slabs and in some instances secure coffins impeding the extraction of the corpse.

In Gilbert v Buzzard (1820) 3 Phill 335; 161 ER 1342, often described as the leading case on the common law right of burial in the churchyard; Gilbert wished to bury his deceased wife in an iron coffin, as a protection against grave robbers. Buzzard as churchwarden, refused internment of the coffin, as the parish disapproved of iron coffins.

As the secular courts held that the right of a burial was a common law right alone: but … the mode of burial is a ’matter of of ecclesiastical cognisance alone’ Gilbert took his complaint to the local ecclesiastical court noting

‘ that a parishioner has a right to be buried in his own parish churchyard: but it is not quite so easy to find the rule … that gives him the right of burying a large chest or trunk along with himself’ (p.1348).

A coffin burial imposed a burden on the parish to purchase and maintain additional burial grounds; coffins took up more space in the churchyard, and retarded the ‘dissolution’ of the human remains in the soil, preventing the use of the ground for future burials.

The Chancellor ordering the parish to calculate a scale of charges for digging the grave and burial in both wood and iron coffins (including separate payments to churchwardens) enabled Gilbert to bury his wife as he wished, and the parish was compensated for the increased financial burden that this caused.

The scale of fees that was eventually approved included separate payments to Buzzard and the churchwardens. The Chancellor held that a relative of a deceased

 ‘has no right … to quarrel with the public uses to which [the fee] has been applied by the parish’ (p.1351).

Interestingly the ecclesiastical courts doubted (Dixon (1892) Probate Division 386) that the common law right of burial extended to the burial of cremated remains, although this avoids the practical difficulties identified with coffin burial in Gilbert v Buzzard. s.3(1)Miscellaneous Provisions Measure 1992, confirms a person who has a right of burial in a churchyard has a right to the burial of their cremated remains.

Family Provision and the Lax Executor

Shirley Hartley died in June 2016 survived by her sons Craig, Shane, Peter and Damian.

Shirley executed her last will (“The Will”)in March 2015 appointing Shane as executor and leaving a property to Shane, Peter and Damian; a vehicle to Shane and the residue of the estate to Shane, Peter and Damian in equal shares.

Statutory Declaration

The Will was accompanied by a statutory declaration explaining that due to Shirley’s past financial generosity towards Craig, his drug addiction and alcoholism, imprisonment, and theft from her, the stress he caused to her during her cancer treatment and the restraining order she had taken out against him he was excluded as a beneficiary of the Will.

The Executors year

In the administration of an estate, there is a general principle that a period of 1 year from the date of death is a reasonable time within which an executor should administer the estate.

Craig applied for a revocation of the grant of probate seeking a grant of letters of administration to a reputable solicitor to be appointed as administrator and trustee in Shane’s place; submitting that Shane had failed in his performance as executor of the estate.


Shane submitted that Craig has no standing to bring the present application. However, the Court stated s 6 Succession Act 1981(Qld) provides broad jurisdiction in estate matters “as may be convenient”. Accepting Shane’s performance of his duties was “so lax” that if any of the named beneficiaries were the applicant, the Court would grant the application. Of particular concern was Shane’s failure to comply with his obligations as a litigant acting for the estate in defence of Craig’s family provision application filed in the District Court on March 2017.

Shane has not complied with a District Court order on 20 March 2019, to file his affidavit in the claim by 15 April 2019. Although the Court observed, Craig has been far from the model litigant, (in part because of his incarceration) but he has finally brought the application to remove Shane as executor.

Caselaw suggests that what constitutes standing varies depending upon the nature of the case and the nature of the asserted interest or right of the party whose standing is in question. The Court observed that Craig’s prospective interests via a family provision application with its legislative protection of the executor is a powerful indicator that this interest is sufficient to give him standing.

The Court adjourned the matter to allow sufficient time for it to become apparent whether Shane is conducting himself consistently with his duties as executor, including in his role as a party to the District Court litigation.

Cray fisher; missing, presumed drowned.

On 15 December 2017 after completing work on his farm Rodney Peter Green (“Rodney”) left home intending to drive to Hall Bay on the Eyre Peninsula to set cray pots to catch crayfish for Christmas. The boat Rodney was in capsized; his wife Susan Lee Green (“Susan”) has not seen or heard from him since.

Susan reported Rodney’s disappearance and presumed death to the State Coroner on 19 December 2017. Susan was informed that, as the Police investigation into Rodney’s disappearance remained open and he is listed as a missing person, the Coroner cannot determine that he is deceased.


In May 2006, Rodney executed a will (“the Will”) appointing Susan executor and the sole beneficiary of his estate. r 28(1) of the Probate Rules 2015 (SA) (“the Rules”) provides that a death certificate must be lodged with every probate application to confirm death and/or date of death.

The proceedings

Under s35(1) of the Births, Deaths and Marriages Registration Act 1996 (SA), (“the Act”) the Court may, on application by an interested person or on its own initiative, order— 

(a) the registration of a death; or 

(b) the inclusion of registrable information about a death in the Register.

In South Australia r 68 of the Rules provides that an application for permission to swear to the death of any person in respect of whose estate a grant is sought may be made to the Court, supported by an affidavit setting out the grounds of that application. 

Susan’s affidavit filed in support of her application affirmed that Rodney disappeared when the boat he was in capsized in Hall Bay on 15 December 2017. Similarly, there is no evidence of anyone attempting to access Rodney’s assets, and no claim has been made against the life insurance policy in Rodney’s name.

Police Detectives have found no evidence to suggest that Rodney’s death was in any way suspicious and not as a result of the marine accident; or that Rodney did not die as a result of drowning at Hall Bay on 15 December 2017. 

Similarly, there has been no reported sighting of Rodney since 15 December 2017 and his body has not been recovered. Rodney and Susan’s sons Douglas and Tom have each filed an affidavit deposing that they assisted with the search for Rodney and that they have not seen or heard from Rodney since he disappeared on 15 December 2017. 


The Court ordered probate of the will be granted to Susan, upon making an application for a grant of probate in a form acceptable to the Registrar of Probates, the Court directed that the Registrar issue the grant.

Inferred Death

On February 16, 2019, Lyn ‘Raz’ Burtonwood was rostered, for morning surf patrol at Lighthouse Beach, Ballina, with other members of the Ballina Lighthouse and Lismore Surf Life Saving Club; a fit 69-year-old man who regularly attended the Beach, on a Saturday, for an ocean swim.

Raz jumped into the water to test the conditions; however other members of the surf patrol lost sight of him and launched an inflatable rescue boat but could not locate him.

Until light fell the search expanded to include jet skis, drones, helicopters and the SES and resumed the following morning. The search was extensive, unfortunately, Raz was not found during the search and has not been seen since. As the body was never found, the incident was treated as a suspected death and a coronial inquest was mandatory

Death Certificate

On 13 December 2019, a Death Certificate was issued under the Births, Deaths and Marriages Registration Act 1995 (NSW). Showing Raz’s date of death as 16 February 2019 and the cause of death was stated as “Drowning” with the “Body Not Recovered”.

Generally proving death by inference where less than seven years has elapsed, when a person has disappeared was described in Chard v Chard [1956] P 259 at 270:

“… in each case…taking the facts as a whole and of balancing, as a jury would, the respective probabilities of life continuing and having ceased.”

In Estate of Lyn Burtonwood [2020] NSWSC 715 the Court observed

‘an inferred death is one where, although a body is not found or recovered, the death can be inferred from the surrounding circumstances, and where it can be inferred that it is more probable that the person has died, rather than that he, or she, is living.’ (at [16]).

Informal Will

Raz’s son Che, sought administration of a document dated 25 April 1990 (the Will). Whilst the Court was satisfied that the document reflected the testamentary intentions of the deceased; it had not been executed according to Pt 2.1 of the Succession Act.

The Court ordered that Letters of Administration with the Will of the deceased annexed be granted to the Plaintiff. The Senior Deputy Registrar in Probate referred the matter back to the Court concerned about how the grant should be described in the Probate parchment. If a grant has been made on the presumption of death, generally it is not possible for the court, or a registrar to include provision for the date of death of the deceased person as the deceased’s death is not presumed to have occurred on, or about, a particular date.

Presumption of death

At common law after an absence of seven years, in certain circumstances, a person may be presumed dead: Axon v Axon (1937) 59 CLR 395. If a grant has been made on the presumption of death, it is not possible for the court, or a registrar to complete this requirement, as the deceased’s death is not presumed to have occurred on, or about, a particular date.

Establishing the presumption of death after seven years requires proof of the absence of knowledge of the person being alive whereas proving death by inference is a positive test.

The Decision

In this case, the Court held that the evidence is supportive of the conclusion, notwithstanding that a body wasn’t located, that Raz died on 16 February 2019 within a short period of having gone swimming. Further, there is no evidence that Raz had such a compelling motive to disappear to infer that he might have created an elaborate stage, to give the impression that he had died by drowning.

In discussing ss 40A and B of the Probate and Administration Act 1898
“It is unclear whether the term “presumption of death” in s 40A covers cases referred to as “inferred death”, as well as what can properly be described as a “presumed death”.
where a grant was made on the presumption of death s 40B, provides that the estate could not be distributed without leave of the court.

The Court found that the grant of letters of administration of the testamentary document could be made without including the words ‘on presumption of death’.

Promissory Estoppel a Macedonian lawyer, and the Audiovisual link

Ljubica Dimitrovska who died in November 2014 had three children: the first, Radmila, born in Macedonia in 1948, from her first marriage, which ended in divorce about 1950; the second, Lidija, born in Macedonia in 1957, and her third child a son, Leonard born in Macedonia in 1960 ( who predeceased Ljubica) from her second marriage which ended when her husband died in 1971.

Ljubica and her second husband moved to Australia with Lidija and Leonard, in 1967; and in 1969 the couple purchased the Granville property (the principal asset of Ljubica’s estate). Radmila remained in Macedonia.

Lidija married her first husband in 1976 and in 1987 moved to live in Croatia. She had subsequently married her second husband and lived in Croatia.

Vase Antov the son of Radmila and a grandson of Ljubica moved to Australia in 1997 but had spent time in Austria for a brief time in 1999 and then again from 2001 to about 2006.

The Grandson’s claim

Vase claimed he was entitled to an unencumbered interest in the Granville property which had been owned Ljubica and which had been occupied by Vase (together with the Ljubica and Radmila) from approximately May 2010.

Vase sought a declaration that, in the events which had happened, Lidija (as executor of the deceased’s estate) held the Granville property upon constructive trust for him.

A constructive trust, is an equitable remedy that seeks to avoid the consequences of unconscionable conduct by one party, to the detriment of a beneficiary. In Muschinski v Dodds (1985) 160 CLR 583 Deane J stated that a constructive trust

“can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement”.

Vase also sought an order that Lidija do all things and sign all documents necessary to transfer the unencumbered title of the Granville property to him, and further sought a declaration that, as executor of the estate, Lidija held the balance of the estate upon constructive trust for him.

Vase’s case rested upon the existence of two documents — a Power of Attorney, and a document described as a Contract for a Gift, which was said to have been prepared on the deceased’s instructions by Zarko Dabeski a Macedonian lawyer in 2009. 

These documents were alleged by Vase in combination to have given rise to specific representations in relation to the Granville property, upon which Vase claimed to have relied to his detriment, so as to generate an entitlement to receive an unencumbered transfer of the Granville property on the grounds of promissory estoppel.

Vase submitted that he relies upon both documents to establish his case,  if the Contract for a Gift is not found to be an authentic document then “this case would simply not be pressed further” 

At first instance Vase’s claims were dismissed with costs, the Court held that it was not persuaded that the Contract for a Gift was an authentic document which had been executed by Ljubica, and declaring that the execution of the Power of Attorney was of no effect as it had been obtained by the undue influence and unconscionable conduct of Vase. 

The appeal

Vase appealed the decision on the grounds that the primary judge erred in finding that the Contract for a Gift was not authentic, and in exercising discretion under r 31.3 of the Uniform Civil Procedure Rules 2005 (NSW) by refusing to receive the evidence of Zarko Dabeski – who claimed to have witnessed the execution of this document – via video link with the court in Macedonia, and in refusing to receive Mr Dabeski’s affidavit into evidence.

The defendant was not provided with any contact details that have been able to produce any communication with Zarko Dabeski, they have not even been able to confer with him in order to satisfy themselves in relation to some procedural aspects at least in relation to his evidence.

Section 5B of the Evidence (Audio and Audio Visual Links) Act 1998 provides the court with a discretion whether or not to permit evidence to be given by video link, the court must not make such an order if satisfied that a direction to allow such a course would be unfair to a party.

Sir Edwin Marsden Tooth – Trust or Absolute Gift?

A charitable trust provides a will-maker with the ability to specify a particular cause they wish to benefit and enables the trustees greater flexibility in carrying out the will makers wishes in the administration of the estate.

Sir Edwin Marsden Tooth died on 27 May 1957. He formed Austral Motors Pty Ltd in 1924 becoming a leader of the motorcar industry in Brisbane and, towards the end of his life, a generous philanthropist gave generously to medical, educational and charitable institutions.

In 1956 Sir Edwin contributed £35,000 to the Brisbane Hospitals Board for the construction of the Edwin M. Tooth Lecture Theatre and the Edwin M. Tooth Laboratories for Research in Medicine at (Royal) Brisbane Hospital which were made available to the University of Queensland’s medical school. He endowed the Edwin Tooth scholarship for postgraduate study in medicine. Additionally, he provided £20,000 to enable Brisbane Hospital to appoint a visiting professor of medicine, surgery, or obstetrics and gynaecology each year. 

Sir Edwin’s estate was worth over £700,000. In his Will he provided a bequest to the Corporation of the Synod of the Diocese of Brisbane (the Corporation) to establish within the Diocese a home for the aged persons and it was named “The Edwin Marsden Tooth Memorial Home” (the Home). The Home was built and later, extended, through the use of government grants, other legacies and other gifts. 

Re the Will of Edwin Marsden Tooth

The Corporation sought the Courts declaration as to the proper construction of the Will. The question for determination concerns the true nature of one of the gifts in that will – was it absolute or was it subject to a trust? 

An absolute gift passes directly to the intended beneficiary; it is then theirs to do with as they wish. In contrast, a gift in trust means that the gift is controlled by the trustees.

The Corporation of the Synod of the Diocese of Brisbane submits that the following clause of the Will provides for an absolute gift to it. 

“… I direct my trustees to stand possessed of my [residuary estate] upon trust to pay the same to the following institutions in the proportions and for the purposes herein mentioned viz:- …

(ii) To the said Corporation for the purpose of establishing within the Diocese a home for Aged Persons to be described as ‘The Edwin Marsden Tooth Memorial Home’ …”

The Attorney- General, who has a right to intervene in the matter, submits that the gift was for a charitable purpose and that a trust was created. 

The Court held that, upon the proper construction of the Will of Sir Edwin Marsden Tooth, the Corporation is justified in regarding itself as having been beneficially entitled to the provisions which came to it from the estate of the deceased pursuant to the Will and in respect of which it has all the powers of an absolute owner. 

The UK permits a Will to be witnessed via video conference

In the United Kingdom, s 9 of the Wills Act 1837 provides that a will must be in writing and signed in the presence of two witnesses.

Witnesses to the document must not include anyone who is a beneficiary of the will or the will makers spouse or civil partner.

The witnesses must attest and sign the will or acknowledge their signatures in the presence of the will-maker.

Section 1 of the Wills Act 1963 provides a will to be “properly executed” if it was executed in line with the laws

(a) of the place where the will was executed;

(b) where, at the time the will was executed or when the testator died, the testator was domiciled or had his habitual residence; or

(c) in force in a state of which the testator was a national either when the will was executed or at the date of the testator’s death.

Therefore, if the testator is a national of a state that allows witnessing of wills by video or holographic wills, the testator would not need to comply with the formal witnessing requirements under s9 of the Wills Act 1837 for the will to be considered valid under English law.

However if the will-maker doesn’t meet one of these exceptions, a will must be witnessed in accordance with the formal requirements, requiring two present witnesses.

A temporary revision to the Wills Act permitting live video-conferencing removes the requirement for the physical presence between the will-maker and their witnesses until 31 January 2022, although this date could be amended.

The amendment permitting video-conference Wills is to be made in September 2020 providing that any Will (not already admitted to probate) which has been made after January 31 2020, will be valid if it complies with the amendment.

The signatures must be made by hand in pen on the one original document- esignatures are not permitted

The will-maker must execute the document

a. in the presence of two witnesses being in the presence of the will-maker by way of video conference in real-time, not by pre-recorded video; or

b. in the presence of one witness being in the presence of the testator by way of video conference

There will be a minimum of two separate video recordings – one where the Will maker signs the Will and the second for the witnesses if they are in the same room when they do so; otherwise, there will be three video conferences to complete the Will signing procedure.

There can only be one Will document. So, once the will maker has signed their Will with your witnesses watching via video link, there will be a delay whilst it is delivered to both your witnesses for them to sign (again by live video link).

Importantly the document is not a valid Will until everyone has signed. In the intervening period, the Will maker could change their mind or lose capacity between signing the Will and the witnesses signing.

Similarly, there is a risk the document could be lost or damaged if posting it between the will-maker, witnesses and back again.