Re Tuck; Estate of the Late Wilfred Richard Tuck [2022] NSWSC 107

Re Tuck; Estate of the Late Wilfred Richard Tuck [2022] NSWSC 107

On the proper construction of the will, assisted by extrinsic evidence, the charities named in the residuary gifts were sufficiently identified. The references to the Macular Degeneration Foundation and Macular Degeneration Society both referred to Macular Disease Foundation Australia ACN 096 255 177, the latter involving a mistake in the last word of the name. The reference to Westmead Children's Hospital identified Sydney Children's Hospital Foundation being for the Children's Hospital at Westmead. The executor would therefore be justified in distributing the gifts to the identified charities, and the gifts did not fail.

Jurisdiction
Australia
Judgment Date
04 February 2022
Procedural Posture
Equity; Application for Judicial Advice Pursuant to Trustee Act 1925 (nsw) S 63 Concerning Construction of Residuary Charitable Gifts in a Will / Ex Tempore Judgment and Orders
Outcome
Judicial advice given. The will of the testator sufficiently identifies all the named charities that are gifted portions of the residue of the estate.
Legal Topics
['judicial Advice' 'construction of Will' 'charitable Gifts' 'identification of Charitable Beneficiaries' 'general Charitable Intention' 'residuary Estate']
['equity' 'trusts and Trustees' 'succession'] ['judicial Advice' 'construction of Will' 'charitable Gifts' 'identification of Charitable Beneficiaries' 'general Charitable Intention' 'residuary Estate']

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Procedural Posture

Equity; Application for Judicial Advice Pursuant to Trustee Act 1925 (nsw) S 63 Concerning Construction of Residuary Charitable Gifts in a Will / Ex Tempore Judgment and Orders

Legal Issues

  1. 1 ['Whether the will sufficiently identified the charities named in clauses 1.6.4, 1.6.5 and 1.6.11 as residuary beneficiaries.' 'Whether the gift to the Macular Degeneration Foundation and the gift to the Macular Degeneration Society should be treated as gifts to Macular Disease Foundation Australia.' "Whether the gift to Westmead Children's Hospital should be treated as a gift to Sydney Children's Hospital Foundation being for the Children's Hospital at Westmead." 'Whether, if any gift failed for uncertainty or cessation of the charity, the will demonstrated a general charitable intention.']

Ratio Decidendi

On the proper construction of the will, assisted by extrinsic evidence, the charities named in the residuary gifts were sufficiently identified. The references to the Macular Degeneration Foundation and Macular Degeneration Society both referred to Macular Disease Foundation Australia ACN 096 255 177, the latter involving a mistake in the last word of the name. The reference to Westmead Children's Hospital identified Sydney Children's Hospital Foundation being for the Children's Hospital at Westmead. The executor would therefore be justified in distributing the gifts to the identified charities, and the gifts did not fail.

Court Disposition

Judicial advice given. The will of the testator sufficiently identifies all the named charities that are gifted portions of the residue of the estate.

Orders

  • ["In the circumstances set out in the Statement of Facts dated 20 September 2021 and filed in these proceedings on 21 September 2021, Robert Neal Tuck executor and trustee, as trustee of the will of the deceased Wilfred Richard Tuck, would be justified in distributing, pursuant to Clause 1.6 of the Will of the...