Re estate of the late Stasha Berger [2020] NSWSC 750

Re estate of the late Stasha Berger [2020] NSWSC 750

The Court held that the bequest in clause 8(a) was intended to be received by the organisation administering or associated with the Shrine, namely the Trustees of the Order of the Capuchin Friars Minor, but that the inclusion of the word "Shrine" limited the purpose to the preservation, upkeep and maintenance of the Shrine and activities directly associated with that Shrine, not the Order's activities generally. On that construction, the executors would be justified in paying 80% of the residue to the Trustees after informing them of the Will's terms and confirming their intended use of the funds for the Shrine and associated activities; a receipt by the secretary or treasurer would...

Jurisdiction
Australia
Judgment Date
18 June 2020
Procedural Posture
Application by Executors for Judicial Advice Pursuant to S 63 of the Trustee Act 1925 (nsw) Concerning Construction of a Residuary Charitable Bequest in a Will / On the Papers; Principal Judgment
Outcome
Judicial advice given; executors' costs ordered to be paid from the deceased estate on the indemnity basis.
Legal Topics
['judicial Advice' 'construction of Wills' 'charitable Gifts and Trusts' 'ambiguity in Bequest' 'executor Costs']
['succession' 'trusts and Trustees' 'charities and Not for Profits'] ['judicial Advice' 'construction of Wills' 'charitable Gifts and Trusts' 'ambiguity in Bequest' 'executor Costs']

Case Brief

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Procedural Posture

Application by Executors for Judicial Advice Pursuant to S 63 of the Trustee Act 1925 (nsw) Concerning Construction of a Residuary Charitable Bequest in a Will / On the Papers; Principal Judgment

Legal Issues

  1. 1 ["Whether the executors would be justified in paying 80% of the residue of the deceased's estate to the Trustees of the Order of the Capuchin Friars Minor under clause 8(a) of the Will." 'Whether the words "Shrine of Saint Anthony of Padua Capuchin Friars Minor Hawthorn – Melbourne Victoria" identified the recipient and purpose of the bequest sufficiently, given that the Shrine is not a legal entity.' 'Whether the gift was for the upkeep, maintenance and purposes of the Shrine, or a broader gift to the Order of the Capuchin Friars Minor generally.' 'Whether payment into a bank account in the name of the "Capuchin Franciscan Friars" and receipt by the secretary or treasurer would discharge the executors.']

Ratio Decidendi

The Court held that the bequest in clause 8(a) was intended to be received by the organisation administering or associated with the Shrine, namely the Trustees of the Order of the Capuchin Friars Minor, but that the inclusion of the word "Shrine" limited the purpose to the preservation, upkeep and maintenance of the Shrine and activities directly associated with that Shrine, not the Order's activities generally. On that construction, the executors would be justified in paying 80% of the residue to the Trustees after informing them of the Will's terms and confirming their intended use of the funds for the Shrine and associated activities; a receipt by the secretary or treasurer would...

Court Disposition

Judicial advice given; executors' costs ordered to be paid from the deceased estate on the indemnity basis.

Orders

  • ['Pursuant to s 63 of the Trustee Act 1925 (NSW), advise the executors of the estate of the late Stasha Berger (also known as Stanislava Bergerova) that, under clause 8(a) of the Deceased\'s Will made on 21 December 2017, they would be justified in paying 80% of the residue of the deceased\'s estate to the Trustees...