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New South Wales Supreme Court NEW SOUTH WALES SUPREME COURT CITATION: Tantau v MacFarlane [2010] NSWSC 224 JURISDICTION: Equity Division Probate List FILE NUMBER(S): 300334 of 2009 HEARING DATE(S): 8 February 2010 JUDGMENT DATE: 25 March 2010 PARTIES: Robyn Tantau (Plaintiff) Margaret MacFarlane (First Defendant) The Trustees National Gallery of Victoria (Second Defendant) Attorney-General of the State of New South Wales (Third Defendant) JUDGMENT OF: Ward J LOWER COURT JURISDICTION: Not Applicable LOWER COURT FILE NUMBER(S): Not Applicable LOWER COURT JUDICIAL OFFICER: Not Applicable COUNSEL: J Wilson SC (Plaintiff) J Needham SC (First Defendant) M Meek SC (Second Defendant) C Mantziaris (Third Defendant) SOLICITORS: Herd & Associates (Plaintiff) Wills & Estates Legal Service (First Defendant) Maddocks Lawyers (Second Defendant) I V Knight (Third Defendant) CATCHWORDS: WILLS PROBATE AND ADMINISTRATION – principles of rectification and construction – acceptance and disclaimer of gifts – CHARITABLE TRUSTS – whether valid gift for charitable purposes – whether general charitable intention – cy- près schemes – half of residuary estate left to non-existent „Art Gallery of Victoria‟ to create an annual painting award – HELD – rectification of will to refer to National Gallery of Victoria – valid disclaimer despite initial acceptance of gift due to misapprehension of conditions of gift – gift does not fail by reason of non-existence of „Art Gallery of Victoria‟, by reason of disclaimer, for uncertainty or impracticality and is a valid gift for a charitable purpose – alternate trustee to be appointed to administer award LEGISLATION CITED: Charitable Trusts Act 1993 (NSW) Family Provision Act 1982 National Gallery of Victoria Act 1966 (Vic) Probate and Administration Act 1898 (NSW) Statute of Charitable Uses (1601) (England) CATEGORY: Principal judgment CASES CITED: Aljaro Pty Ltd v Weidmann [2001] NSWSC 206 Arnott v Leong [2009] NSWSC 187 Attorney-General for New South Wales v Adams (1908) 7 CLR 100 Bush v National Australia Bank Limited (1992) 35 NSWLR 390 Chesterman v Mitchell (1925) 24 SR (NSW) 108 Commissioner for Stamp Duties (NSW) v Carlenka Pty Limited (1995) 41 NSWLR 329 Commissioners of Income Tax v Pemsel [1891] AC 583 Commissioner of Taxation of the Commonwealth of Australia v Ramsden [2005] FCAFC 39 Construction Training Board v Attorney General [1971] 1 WLR 1301; [1971] 3 All ER 449 Corish v Attorney-General of NSW [2006] NSWSC 1219 Crystal Palace Trustees v Minister of Town and Country Planning [1951] 1 Ch l32; [1950] 2 All ER 857 Cummings v De Santis; De Santis v De Santis [2002] NSWSC 729 Doe on the demise of Jane Smyth v Sir George Henry Smyth, Bart (1826) 6 B & C 112; 108 ER 394 Donnolley v Clarke [2008] NSWSC 522 Guardhouse v Blackburn (1866) LR 1 P&D 109 In re Litchfield, Public Trustee v Millett [1961] ALR 750; (1961) 2 FLR 454 In re Lysaght [1966] 1 Ch 191 Incorporated Council of Law Reporting for England and Wales v Attorney-General [1972] Ch 73; [1971] 3 All ER 1029 Lady Naas v Westminster Bank Ltd [1940] AC 366 Lawson v Lawson NSWSC, unreported, 17 November 1997 Lewis v Lohse [2003] QCA 199 Lloyd v Federal Commissioner of Taxation (1955) 93 CLR 645; [1956] ALR 95 Long v Long; Estate of Ethel Edith Long [2004] NSWSC 1002 Lutheran Church of Australia South Australia District Incorporated v Farmer's Co- operative Executors and Trustees Ltd (1969) 121 CLR 628; [1970] ALR 545 McLean v Attorney General of New South Wales [2002] NSWSC 377 Menna v Jacobs; Re The Estate of Catherine Nolan [2004] NSWSC 1191 Miskelly v Arnheim [2008] NSWSC 1075 Narsi v Bhiudi; Estate of Kalyanji [2008] NSWSC 1160 Perpetual Trustee Co Ltd v Groth & Ors (1985) 2 NSWLR 278 Public Trustee v Attorney General of New South Wales (1997) 42 NSWLR 600 Public Trustee v Permanent Trustee Co Ltd [2003] NSWSC 556 Rawack v Spicer [2002] NSWSC 849 Re Boyd (deceased); Knowles & Anor v Commissioner of Inland Revenue [1966] NZLR 1109 Re Chanter (deceased) [1952] SASR 299 Re Cranstoun (deceased); Gibbs v Home of Rest for Horses [1949] Ch 523 Re Dupree's Deed Trusts; Daley v Lloyds Bank [1945] 1 Ch 16 Re Estate of Dyranda Prevosk [2004] VSC 537 Re Estate of Max Frederick Dippert [2001] NSWSC 167 Re Hodge: Hodge v Griffiths [1940] Ch 260 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Re Lawton [1936] 3 All ER 378 Re Leitch (deceased) [1965] VR 204 Re Lowin: Perpetual Trustee Co Ltd v Robins (1967) 2 NSWR 140 Re Paradise Motor Co Ltd [1968] 2 All ER 625 Re Taylor; Martin v Freeman (1888) 58 LT 538 Re Young; Fraser v Young [1913] 1 Ch 272 Royal Choral Society v Commissioners of Inland Revenue [1943] 2 A11 ER 101 Royal North Shore Hospital of Sydney v Attorney General for New South Wales (1938) CLR 396 State Trustees Ltd v Wheeler & Ors [1998] VSC 115 Stephens v Stephens [2007] FamCA 680 The Cram Foundation v Corbett-Jones and Anor [2006] NSWSC 495 The Trustees Executors and Agency Co Ltd v Zelman Memorial Symphony Orchestra; Re Lloyd [1958] VR 523 Townsen v Tichell (1819) 3 B Ald 31 Williams v Milone [2004] NSWSC 576 TEXTS CITED: G Dal Pont, Charity Law in Australia and New Zealand, Oxford University Press 2000 Professor Crago, "Principles of Disclaimer of Gifts" (1999) 28 Western Australian Law Review 65 Mortimer & Summucks on Executors, Administrators and Probate, 19th ed, Sweet & Maxwell, 2008 Theobald on Wills 16th edn. Sweet & Maxwell, 2001 Tudor on Charities, 7th ed, Sweet & Maxwell, 1984 Williams on Wills, 9th ed, Butterworths 2008 DECISION: 1. Order under s 29A of the Probate and Administration Act 1898 that the will dated 3 February 2003 of the late Mona Alexis Fox (also known as Mona Alexis Brand) (who died on 1 August 2007), probate of which will was granted on 12 December 2007, be rectified by substituting for the word “Art”, in the description of the institution “Art Gallery of Victoria” in clause 3(c) of the will, the word “National”. 2. Declare that the gift to the National Gallery of Victoria under the will as so rectified is a valid gift for charitable purposes. 3. Declare that the National Gallery of Victoria has disclaimed the gift to it under the will as so rectified. 4. Direct the executors and trustees of the said will to take steps to identify a substitute trustee for the administration of the 'Len Fox Award'. 5. Declare that, in the event that a substitute trustee for the administration of the „Len Fox Award” cannot be identified within a reasonable time to be determined, the matter should be referred to the Attorney-General to establish a scheme for the administration of the gift cy-près in accordance with s 13 of the Charitable Trusts Act 1993 (NSW). JUDGMENT: - 44 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST WARD J THURSDAY 25 MARCH 2010 2009/300334 ROBYN TANTAU V MARGARET MACFARLANE & ORS IN THE ESTATE OF MONA ALEXIS FOX JUDGMENT 1 This matter concerns the will of the late Mona Alexis Fox, who died on 1 August 2007. On 12 December 2007, probate of her last will (made on 7 February 2003) was granted jointly to the plaintiff and the first defendant. 2 Under her will, the deceased (after two gifts of individual pieces of artwork by the artist Emanuel Phillips Fox, her late husband‘s uncle, and various small pecuniary legacies) left her residuary estate (valued, as I understand it, in the order of $800,000) in two equal shares – one half to the State Library of New South Wales (for the creation of a fund to establish an annual award to an outstanding Australian woman writing for the stage or screen, to be known as the Mona Brand Award) and the other half to the Art Gallery of Victoria (for the purpose of creating an annual award for a painting by an Australian artist of an Australian subject in sympathy with the works of E. Phillips Fox, to be known as the Len Fox Award). No difficulty arose with the first of the residuary bequests. It is with the second of the residuary bequests that problems have arisen. 3 First, there is no entity known as the ―Art Gallery of Victoria‖ and, secondly, the entity which (for reasons on which I elaborate below) it is probable was the intended recipient of the second residuary bequest (the National Gallery of Victoria) has, following an initial acceptance of the gift, subsequently indicated its wish to disclaim the gift. 4 The plaintiff, Ms Tantau, has no interest in the outcome of this application. The first defendant, Ms MacFarlane, is one of the nieces of the deceased and was appointed on 21 September 2009 as the representative of the interests of the beneficiaries of the estate should the gift fail and fall to be administered on intestacy. She has permitted the plaintiff to act as sole executor in these proceedings. 5 The remaining parties to the proceedings are the second defendant, the Trustees of the National Gallery of Victoria (NGV) (the Council of which is a body corporate constituted by s 5 of the National Gallery of Victoria Act 1966 (Vic)), seeking declaratory relief in relation to the disclaimer of the gift, and the third defendant, the Attorney General of the State of New South Wales, who has authorised the continuation of these proceedings as a charitable trust proceeding pursuant to s 6(2A) of the Charitable Trusts Act 1993 (NSW) and has been joined as a necessary party to the proceedings. 6 Broadly speaking, the NGV does not take any position in relation to the issues in contention between the parties but has made submissions as to the validity of its disclaimer of the gift.
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