Kostka v Ukrainian Council Brand Brand New Southern Wales Inc

Kostka v The Ukrainian Council of brand new Southern Wales Incorporated 2013 NSWSC 222 (Supreme Court of the latest Southern Wales, Young AJ, 26 March 2013)

This instance concerned construction associated with the might of Taras Bodlak (the deceased), whom died on 2 January 2010, aged 95. The deceased left nine gift ideas in their 1996 will, the following:

1. Australian Shevchenko Trust, Ukrainian Studies Foundation in Australia Limited in Lidcombe NSW: 10%.
2. Ukrainian Youth Association of Australia Ltd in Lidcombe NSW: 10%.
3. Ukrainian Class in Lidcombe NSW: 10%.
4. Ukrainian Ballet-Dancing Groups, School of Music and Arts in Lidcombe NSW: 10%.
5. Ukrainian prisoners that are political Ukraine: 5%.
6. Ukrainian War Invalids in Ukraine: 5%.
7. Ukrainian Ladies Association in Lidcombe: 5%.
8. Renovation of Ukrainian Hall in Lidcombe NSW: 5%.
9. Ukrainian Catholic Church in Canberra: 5 percent.

Problems arose with all the interpretation among these gift ideas. Moreover, there is no setting up of any trusts when you look at the will, or any specification of purposes, but rather outright gift suggestions to organizations, including some which were unincorporated.

Their Honour stated that the basics were well-established (at 3):

• Will there be any one human body which precisely fits the description into the might? If therefore, that human human human body provides and no enquiry that is further made.
• If you don’t, the court can get proof of surrounding circumstances although not direct declarations of intention to learn who was simply meant.
• If there are 2 or even more systems which precisely answer the description, then your court can look not just at surrounding circumstances but in addition direct declarations of intention.

In this full situation, there have been no figures or organisations which exactly matched presents 3 to 8 in the list into the might. This required a cy-pres solution. Which means that in instances where a testator discloses an over-all intent that is charitable maybe perhaps perhaps not a certain intention to profit the known as organization), however the description associated with the beneficiaries is uncertain, the court can authorise a distribution amongst bodies whose names are near to the description employed by the testator in their will, provided the Attorney-General (in their part as protector of charities) consents. The parties was in fact to mediation and also the Attorney-General had consented towards the arrangements that are mediated.

In the problem of general charitable intent, their Honour stated that (at 16–17):

The scheme for this will shows an intention to profit a number of teams with Ukrainian or church connections you might say so that there clearly was clear advantage into the community that is ukrainian. Although Lidcombe is specified, it’s not unusual for categories of individuals arriving at Australia from European countries or Asia to cluster together in specific localities, whoever influence however spreads through the continuing State regarding the country. We therefore usually do not see this guide being a barrier up to a discovering that the presents may generally benefit the community. It really is quite clear that most counsel and lawyers consider that, aided by the feasible exclusion for the present in paragraph 7 towards the Ukrainian ladies Association in Lidcombe and that respecting the hallway in paragraph 8, most of the gift ideas in 1 to 9 are charitable as that term is comprehended in Australian legislation. I really do not want to worry that a number of the systems or all the bodies seem to be unincorporated associations once the proof that has been dealt with within the mediation shows that either you will find corporations or trustees or other reasoned explanations why there isn’t any issue into the association that is unincorporated designated.

Consequently, there was clearly a general intent that is charitable in the will. The cy-pres recipients associated with charitable gift ideas caribbean cupid dating at 3 to 6 regarding the deceased’s list had been determined at mediation, and had been incorporated into their Honour’s requests.

But had been the gift ideas towards the women’s relationship and also the Ukrainian hallway charitable? For the to begin these feasible presents, there have been two contenders: Ukrainian Women’s Association, Lidcombe branch and Ukrainian Women’s Association in Australia, State Executive of NSW. Their Honour considered the four classic charitable purposes as enunciated in Pemsel’s situation. Did the present belong to one of these simple? Really the only one that is possible the 4th mind of charity, ‘other purposes good for the community’.

An organization this is certainly solely for social or leisure purposes may not be charitable, however as their Honour noted ‘the trend of authority is apparently going in the way of upholding such gift ideas where there are features’ that are additional. In cases like this, the Ukrainian Women’s Association in Australia, Lidcombe branch had items which their Honour felt had ‘a charitable flavour’ (at 26). The Lidcombe branch made a large number of donations to Ukrainian based figures in Australia and offshore including contributions towards the Ukrainian School at Lidcombe to aid needy kids in Sokal Ukraine, to deliver clothes towards the bad of Ukraine, also to contribute to the veterans regarding the Ukrainian Partisan Army located in the Ukraine that do perhaps not get a veteran’s retirement and tend to be in bad circumstances. The branch additionally endeavoured to offer help for elderly past people.

Their Honour reviewed the case that is relevant, of which there clearly was small, and people that there have been contained ‘very few good analogies’ (at 34). These instances included Victorian Women Lawyers Association Inc v Federal Commissioner of Taxation 2008 FCA 983. If so, the court held that the purposes for the organization needed to be examined holistically, within the light for the organisation’s formation and history. In this respect, His Honour said (at 30):

It could appear to me personally that inside the ambit of what exactly is being considered in developing that list would consist of a small grouping of females fulfilling alongside the typical purpose of advertising Ukrainian tradition and trying to take care of people of Ukrainian beginning in needy circumstances.

He figured (at 44–45):

It should be recognized there is no choice into the typical legislation globe which goes quite in terms of the thing I need to decide within the case that is present. Further, I noted 10 years ago in Radmanovich v Nedeljovic that this seemed to be an unwholesome space in charity legislation. It appears for me now, nonetheless, that that space is slowly being paid off. We now think about, within the light associated with the product We have actually reviewed, that in twenty-first century New Southern Wales a trust in preference of a small grouping of ladies of a specific ethnicity, who seek significantly more than simple entertainment and social intercourse, but in addition to aid individuals of exactly the same cultural team and distribute that culture to help expand the community purposes of a small grouping of Australians of a specific cultural origin, is a charitable present.

The present had been split similarly amongst the two contending recipients.

Regarding the present to renovate the hallway, the hallway ended up being effortlessly recognizable, but there was clearly no charitable function connected to the present. The data revealed that the hall had been principally used being a location for Ukrainian social tasks or even for tasks linked to the regional Ukrainian Catholic college. The Attorney-General presented that the present ended up being an objective present and therefore because of the evidence showing this type of close experience of other charitable tasks, specially using the college, the present arrived to the course of gift ideas when it comes to upkeep of college structures that are frequently charitable. Their Honour consented.

Implications for this instance

This instance ended up being a good example of just exactly exactly how to not make a might. The deceased never ever had and married no young ones. The will ended up being divided in to 100 components, of which 65 were designated for charity. Nevertheless, the dead failed to determine the charitable recipients properly (except 1, 2 and 9), and every must be decided cy-pres by mediation, or because of the upshot of this instance (where two gift suggestions had been doubtful as with their nature that is charitable). More over, there had been household supply application which lead to 10 components being granted to a family group supply recipient. Expenses implications had been obvious, and their Honour dealt with all the expenses problem by the end with this situation. Costs regarding the plaintiff (the executor) additionally the Attorney-General were granted from the estate. Charges for the charities had been deducted from their circulation.